View article in its entirety at the Toronto Star.
— Author: Bruce Campbell
The Lac-Mégantic oil train derailment on July 6, 2013 was the worst industrial disaster on Canadian soil in over a century: 47 people killed; 26 children orphaned; the town centre incinerated; an unprecedented six million litre spill of toxic shale oil; ongoing environmental, physical and post-traumatic health issues affecting community members.
Eight years have passed since the catastrophe. Transport Canada still has not taken the necessary actions to minimize safety risks. The window for a recurrence of a Lac-Mégantic is still open as the Environmental Commissioner in Auditor General’s Office told reporters on the release of his October 2020 report into the transportation of dangerous goods.
His statement is especially chilling given the post-Lac-Mégantic increase in dangerous goods traffic, rail accidents, and “uncontrolled movement of railway equipment” — a trajectory interrupted only by the 2020 pandemic lull.
The March 2021 auditor general report on railway safety expressed serious concern about defects in Transport Canada’s safety oversight regime, called safety management systems (SMS); basically, checking off regulatory boxes while failing to assess the effectiveness of SMS in mitigating safety risks; in her words “a big loophole.” (I sat on the advisory committee for the 2021 AG investigation.)
The safety management system regime has remained on the Transportation Safety Board’s Watchlist since the list was created in 2010 to highlight “issues posing the greatest risk to Canada’s transportation system.”
I singled out three of its numerous failings — resources, fatigue management and whistleblower protections — in my appearance before the recent Commons transport committee hearings on railway safety:
- The safety management system regime, introduced in 2002, gave railways far greater leeway to manage their operations — in effect to self-regulate. Transport Canada officials insisted it would constitute an additional safetylayer. However, regulatory resources continued to be squeezed, eroding the agency’s surveillance and enforcement capacity. Audits in company boardrooms largely replaced unannounced on-site inspections. To borrow a metaphor from Justice Moshansky’s testimony on aviation safety, the consequences of four decades of austerity hangs like a Sword of Damocles over rail safety. The Trudeau government’s recent spending uptick barely begins to repair the damage.
- The absence of effective science-based fatigue management regulations is another weakness of the SMS regime, exacerbating risk to the safety of workers and the public. Since the early ’90s, the Transportation Safety Board of Canada (TSB) has identified sleep-related fatigue as a contributing or risk factor in over 90 transportation sector accidents, of which 31 are in rail. The post-Mégantic fatigue regulation amendments are deeply flawed, enabling company practices driven by cost over safety. Fatigue management was put on the TSB watchlist in 2016 and is still there.
- Weak whistleblower protections are another deficiency of this safety oversight regime. A 2016 Commons transport committee report recommended Transport Canada review whistleblower protection provisions to determine if SMS was the appropriate framework. A 2017 parliamentary committee recommended multiple changes to the whistleblower protection system, none of which the government implemented. Earlier this year, Parliament again sent these recommendations to the government — which is still sitting on its hands.
In 2021, two international bodies jointly ranked the effectiveness of whistle-blowing frameworks in 37 countries. Canada came in tied for last place.
A robust whistleblower protection system should be enshrined in legislation, as in the U.S., with an independent office to ensure company employees who come forward with safety concerns will not be harassed and threatened by their employer — as now occurs.
Unless safety management systems are, as originally promised, additional to conventional oversight, with effective surveillance and enforcement by an adequately resourced and staffed regulatory body, SMS should be suspended and Transport Canada’s limited resources redirected to conventional prescriptive regulation until its problems are fixed.
Underlying these deficiencies in safety oversight is the power relationship between the transport regulator and the regulated industry — capture-complicity — which I explore in my book about Lac-Mégantic.
This relationship allows corporations to routinely shape regulations: block or delay new regulations and remove or dilute existing regulations deemed to adversely affect costs, thereby compromising the regulator’s primary obligation to protect the public.
The regulator needs to be armed with countervailing powers to help break out of the capture-complicity straitjacket and shift from a culture of deference to one of necessary tension.
Only then will the window for a recurrence of a Lac-Mégantic-type disaster be truly closed.
A former executive director of the Canadian Centre for Policy Alternatives, Bruce Campbell is currently and adjunct professor, York University, Faculty of Environmental Studies, and senior fellow, Ryerson University, Centre for Free Expression. He is the author of “The Lac-Mégantic Rail Disaster: Public Betrayal Justice Denied.”