SPECIAL REPO

Death by Consensus: THE WESTRAY MINE STORY

BY HARRY GLASBEEK AND ERIC TUCKER 1995 CanLIIDocs 20

L INTRODUCTION realized. The reason why this dreary sequence — accidents, inquiries, recommendations — does not bring T ABOUT 5:20 ON THE MORNING OF about much amelioration is that whatever changes in May 9, 1992, an explosion ripped through practices are sought to be implemented, both the broader the Westray coal mine in Pictou County, political economic and some specific operative Nova Scotia, killing 26 miners. A 10-day assumptions about occupational health and safety search and rescue operation led to the regulation remain unexamined, leaving the improved Arecovery of only 15 of the miners' bodies. The horror and practices subject to the same weaknesses as the preceding anxiety of the familles and friends can only be imagined. standards of operation. (5) Politicians and the mine owner expressed their it is these assumptions on which we focus in this condolences in sonorous tones and praised the herculean paper. We want to explore how the Canadian, and more efforts of the unsuccessful rescue workers. particularly the Nova Scotian, political economic context In a sense, all of this is humdrum. Mining disasters creates an environment in which the protection of involving mass deaths are familiar events. In Pictou workers from harm is only a minor consideration in the County itself, 246 miners already had been killed in a decision-making and behavior of government officiais series of explosions which occurred between 1838 and and private investors. 1952. Most miners killed on the job, however, die in less An especially important aspect of that context is the spectacular circumstances. Another 330 Pictou miners dominance of staple extraction in the economy. It has suffered accidental deaths from other causes (that is, falls colored relations between capital and the state as well as of stone, crushed by coal cars, mangled by mining between labor and capital. From the beginning, the machinery) between 1866-1972. In addition, an unknown exploitation of Canada's abundant natural resources has number of miners were killed between the time been seen as the engine of growth. This has required the commercial mining began, 1809, and the year record- state to be more directly supportive of private capital than keeping began, 1866. Also unknown is the number of is the case in economies whose growth is more tied to its workers who died prematurely from occupational manufacturing base. Governments have had to subsidize diseases.(1) In short, it is routine for miners to be killed, resource extraction through huge investments in maimed, or made ill by their work. (2) infrastructure. The hope is that the returns on the sale of The responses to these recurring mining catastrophes resources will lead to the development of domestic also are routine: doleful mourning, expression of anger industry which will supply local markets. For this followed by the setting up of an inquiry. Westray is only strategy to succeed, much depends on the international exceptional in the number of inquiries it has spawned: no market for the resources. Because the government cannot less than four have been initiated. (3) Invariably, these control those markets, it has very few tools with which ta inquiries reveal that the deaths and injuries are manage the economy. Its reliance on capital's willingness attributable, at least in part, to violations of existing to invest becomes a profound dependency. (6) Over time, mining regulations. (4) This finding inexorably leads to this creates an ideological climate in which governments statements of firm resolve that there will be no openly advocate that they should do everything in their recurrences, no more violations, no more disasters. But, as power to create a favorable climate for investment. This the record shows, these oft-asserted goals are never makes close links between elected politicians,

14 Sumner 1993 NEW SOLUTIONS government bureaucrats, and capitalists the norm rather done by examining the proposition that the corporate than the exception. In regions where the staple-led form is a neutral, facilitating device. growth strategy has failed to produce any kind of industrial development, potential employers are able to THE MAKING OF A DISASTER have governments create particularly attractive Am The Decision to Mine conditions for them. Nova Scotia — and Pictou County, Underground coal mining in Pictou County virtually Nova Scotia, especially is such a region. Michelin Tue, ceased by the end of the 1950s as a result of the loss of for example, was able to have the basic, well-established markets to fuel oil, aging facilities, and deep seams which labor laws re-drafted so that it could avoid unionization. were expensive to mine. (8) But, the local Forci coal seam The government's incentive was to retain the jobs created has some particularly attractive features, which made it by befidielin Tire. It succeeded. One of Michelin's factories likely that there would be someone new coming forward 1995 CanLIIDocs 20 is in Pictou County; indeed, it is the county's largest to resume mining in the area. The coal seam is unusually employer. (7) thick, varying from 2 to 8 meters, its sulphur content is Linked to, and reinforcing, this kind of political below one percent, and it is a high energy producer, economy are a number of assumptions to the following generating between 10,000 to 12,000 British Thermal Units effect per pound. Reserves are estimated at approximately 45 I.) as risk is a natural and unavoidable consequence million tons. But, as its history has shown, the seam also of productive activity in general, and staple extraction in presents some significant problems for profitable and safe particular, any given set of social relations of production mining. The area in which the seam is located is widely is not determinative of the level of risk created; known to be gaseous, exuding significant quantifies of 2.) private economic activity is preferable to public methane, and is highly geologically faulted. This activity; increases the risk that the roofs of the underground rooms 3.) occupational health and safety is an area in which will collapse. workers and employers share a common set of interests Spontaneous combustion also had been a problem in and objectives. While a shared ideology does not prevent previous mining operations in the area. The ash content workers and employers from having disputes over the of the coal seam varies significantly. (9) distribution of their joint productive efforts — requiring Although investors are always on the look-out for them to engage in adversarial bargaining from time to new opportunities which might arise as a result of lime — health and safety issues do not give rise to the changing market conditions and new technologies, none same kind of disputes and, therefore, problems should be could contemplate coal mining in the Pictou area before resolved as much as possible by consensus; 1982. The federal government had set up the Cape Breton 4.) legal forms, such as the contract of employment Development Corporation (Devco) as a crown and the corporate form, are neutral and facilitative. corporation to mine coal in Cape Breton in 1967. When it The events at Westray call into question the validity did so, it extracted an agreement from the province not to of all of these assumptions and, unless an inquiry finally issue new coal mining licenses on the mainland for a 15- faces up to these more fundamental issues, it is likely that year period. history will repeat itself again, not as farce, but as tragedy. As the end of the ban approached, Suncor was the The paper will proceed as follows. We will tell the first resource company to express interest in resuming Westray story in two parts, first, the decision to set up the underground mining in the Pictou coalfield. (10) It began mine and, second, the operation of the mine. These events intensive feasibility studies in 1981, acquired coal rights illuminate the salience of the broader political economic and exploration licenses from the province, and context to an understanding of what happened. Further, purchased and optioned land above the contemplated the story gives the lie to the assumptions which underpin mining site. But, Sunc:or decided not to exploit its leases. health and safety regulation. Next, we detail the In February 1987, Placer Development Ltd. took an option implications of the political economy and the prevailing on Suncor's interests and conducted its own feasibility ideology for the enforcement of health and safety study which was completed in July of that year. regulation. We then critically examine a component of, or An examination of the four volumes produced by prop for, the consensus theory which postulates that that study discloses a remarkable lack of direct and workers and capitalists share, in some roughly explicit concern for the health and safety of miners. To the comparable way, the risks of production. In part, this is extent that hazards are considered, they are discussed in

NEW SOLUTIONS Summer1923 15 the context of whether they would render mining December 1987, purchased Suncor's interests. Kilborn's technically and economically infeasible. The health and study closely paralleled Placer's. Again, there was safety of miners is not identified as an independent factor virtually no expression of concern over mine workers' in the study. For example, the second volume considers health and safety. For example, the aiteria used to choose the mining operations. It begins by setting out the the most appropriate mining method made no mention of parameters which were used in developing a mine design the need to protect worker safety and health. (17) proposai. There is no express statement to the effect that Statutory health and safety requirements are dealt with the mine should be designed to minimize the risk of harm essentially by indicating that "Etlhe mine will be managed to workers. Indeed, of the 11 parameters set out, only two and operated in accordance with the statutory or three relate to safety, and then only indirectly. (11) requirements of the Coal Mines Regulation Act...ftlese Existing health and safety regulations are discussed [A]cts require that the mine be safely operated by 1995 CanLIIDocs 20 briefly in the report, but this amounts to Mile more than a properly qualified, trained and experienced personnel." A description of the statutory requirements regarding one-page description of the -statutory requirements certified personnel and training. (12) This lack of concern follows. (18) does not stem from ignorance. While it is not surprising that private resource The report reveals an awareness of the geological companies and their mine consultants do not consider faults, the dangerous roof and floor conditions to which occupational health and safety a central question to be this may lead, the potential for spontaneous combustion, addressed before a decision is taken to develop a mine, it and the dangerous presence of methane. These are not, should be expected that governments would. After all, however, identified as health and safety problems. Rather, they have regulatory responsibility and they may be held they are considered primarily as problems which go to politically accountable in the event miners are hurt. The technical and economic feasibility. At best, health and available record indicates that, although some federal and safety is subsumed within these engineering and profit- provincial government officiais expressed concern about maximizing calculations. (13) the issues, they were not taken seriously by those with This relegation of the value of human life to a lesser decision-making authority. concern when engaged in planning permits the designers When the federal government was asked to to feel comfortable about their belief in the capacity of contribute financially to the Westray project, a study was modern mine technology and management to solve conducted by the Canada Centre for Minerai and Energy problems as they might arise. This faith suffuses the Technology (CANMET) in 1989. It was admittedly a entire report. For example, in the first few pages of the limited and somewhat superficial" review, based on report there is a brief discussion of mining history in the eight hours of meetings with various officiais in Halifax Pictou coalfield. After noting that the records "include and a 10-hour review of the Kilborn and earlier studies. references to fires and explosions associated with the (19) The CANMET review raised a number of concerns, mining industry," the report continues, "technological including some which were health and safety related. But, advances in underground coal mining and more stringent they were not the focus of the study. A few examples will regulations have decreased the frequency of such suffice. "The planned roof support is the minimum and occurrences." (14) So much for the lessons of history. will likely need up-grading in places. Whether this is Liter on, in the context of discussions of the potential for included in the cost is unclear." (20) "Room and Pillar roof collapses, confidence is expressed that problems will mining forces face workers to make frequent value be detected and that appropriate adjustments will be judgments (particularly in depillaring) that impact coal made. (15) Had the risk to the lives of the miners who recovery, safety and the like. To initiate such mining in a might be killed or injured been squarely before these new set of site-specific conditions you must expect to planners, they might have been less sanguine about their have a lengthy learning curve even with experienced implicit assumption that nothing would go wrong. people." (21) While this last remark suggests a real safety In the event, Placer Development merged with two concern, the predominant technical and economic focus is other mining companies and it chose not to proceed with clarified when the author returns to this point in the the Pictou project. (16) It was at this point that the people general comments of the report. "The real question is who were to be the Westray mine operators came whether this property can wear the cost of the learning forward. They oemmissioned their own feasibility study curve to get to a routine development/extraction from Kilborn Limited in November 1987 and, in practice." (22) At best, it seems, human lives are reduced

1111•111•1•1111 16 Sumer 1993 NEW SOLUTIONS to a cost factor. of the Westray mine because of the negative impact it The federal government review was largely might have on its operations. In a confidential submission concerned with technical and economic questions because to the federal and Nova Scotia governments, Devco it only became involved with the Westray project when pointed to the safety risks in the Pictou coalfields arising Curragh Resources was from the geological fault seeking federal loan structure, gaseousness, guarantees and other and the potential for subsidies. The direct "The provincial government could not pass the spontaneous combus- cost of poor health and health and sate), buck so readily. It has tion of coal dust. This, safety practices (that is, jurisdiction over coal mine safety. But there is however, was something the cost of compen- of a makeweight argu- 1995 CanLIIDocs 20 sating injured workers no requirement for a would-be mine operator to ment in a document and/or their families) get permission from the government to start a much more con cerned was neither a sub- mine. There is a requirement that notice be with the economic im- stantial concern to pri- given where any work is about to be pact of the development vate investors, nor to of Pictou coal. (24) federal government commenced for the purpose of opening a mine. Another person, Trevor officiais reviewing the From that point on, the Department of Labor can Harding, a Pictou project. Moreover, the insist that the operations be conducted in County native who, federal government did accordance with provincial health and sale when he was quoted, not have jurisdiction law." was the grievance chair- over mine safety in the man for United Steel- province. Therefore, it workers of America, could take the position Local 1051, which (as it did both before and after the explosion) that the safe represented the miners at Curragh Resources' lead and operation of the mine was to be left to the province and, zinc operations in Faro in the Yukon, warned of that as long as the federal government had undertakings on company's atrocious safety record there. He said there the part of Westray that it would comply with the had been 39 reported accidents in April 1989 and a dozen applicable provincial law and orders made by the dust fires in late February and early March which caused provincial government, the matter could be ignored. workers to walk off their jobs. (25) No one seemed to The provincial government could not pass the health think this to be relevant to the mining to be done in Nova and safety buck so readily. It has jurisdiction over coal Scotia, although Curragh Resources Inc. was now the mine safety. But, there is no requirement for a would-be Westray mine owner. mine operator to get permission from the government to Curragh Resources Inc.'s lack of experience in start a mine. There is a requirement that notice be given operating an underground mine also was raised by Derek where any work is about to be commenced for the Rance, a private mine consultant. In addition, he pointed purpose of opening a mine. (23) From that point on, the to the gas problem and the difficulty of properly Department of Labor can insist that the operations be ventilating when conducting room and pillar mining. The conducted in accordance with provincial health and depth at which this technique was to be used was also safety law. The point, however, is that the decision to troubling: "When you start getting towards the limit of mine does not have to be cleared in advance with the technology, it is not as safe as if you were mining provincial health and safety authorities. comfortably inside the envelope of technology. It's like There was, then, no governmentally or legally pushing something to the limit all the time. In order for mandated reason to consider workers' health and safety that mine to be safe, everything is going to have to work when deliberating as to whether or not to mine. Yet, the right all the time." (26) issue was not completely ignored during the Westray The failure to heed these warnings or to take health decision-making. However, the few voices that were and safety seriously as an independent concern may be raised attracted little attention at the time. The linked to the pervasiveness of consensus theory Development Corporation of Cape Breton was one such presumptions regarding health and safety. The starting voice. It was concerned about the possible development point is that, while risks are inevitable, they have been set

NEW SOLUTIONS Sununer1993 17 at levels which governments, employers, and workers And, finally, there is no assumption that members of the agite are tolerable. If particular workers want to reduce public have voluntarily accepted the risk of being harmed the risk further, they are free to bargain for this at their by environmental degradation. In other words, once the own cost. Given the assumed confluence of interests, presumptions central to consensus theory are removed, a there is no reason for different regime of government to insist in regulation seems appro- advance that the priate. Employers re- proponents of a risk- "The failure to heed these warnings or fo take spond to this different creating enterprise health and safety seriously as an independent political climate by should demonstrate that concert; may be linked to the pervasiveness of making great efforts to

health and safety issues be seen as environ-1995 CanLIIDocs 20 are adequately consensus theory presumptions regarding mentally friendly. (28) h considered. An health and safety. The starting point is that, -is because of the un- acceptable risk level has while risks are inevitable, they have been set at challenged nature of a already been set and the levels which governments, employers, and presumed consensus in parties can be assumed respect of occupational to have no interest in workers agree are tolerable. tf particular workers conditions that govern- avoiding it. All they want to reduce the risk further, they are free to ments could be involved need is a guiding hand. bargain for this at their own cost" in the development of This makes for an the Westray mine interesting contrast with without feeling the need the way in which environmental concerns are treated in to concern themselves too much about workers' health the approval process. In principle, mining cannot take and safety, that is without considering whether there place before the environental impact of that activity has should be any mining at all given the risks this would been assessed. Nor can federal assistance be given until create for workers. And this is crucial because it is that has been done. (27) As a result, the question of exceedingly unlikely that the Westray mine would have environmental impact was part and parcel of all of the been developed without extensive government feasibility studies conducted by, and for, the resource involvement. companies interested in mining in Pictou county. As early Placer Development's feasibility study was not as November, 1985, Environment Canada and the Nova premised on such government assistance and this may Scotia Department of the Environment jointly prepared have been a factor in the decision not to proceed. (29) By elaborate guidelines for an environmental impact contrast, the project was attractive to Curragh Resources assessment of what was then Suncor's coal mining Inc. precisely because its moving force, Clifford Frame, project. In January, 1990, Acres International Limited had political connections which enabled him ta put submitted to Industry, Science and Technology Canada a together a sweetheart deal with the responsible detailed and lengthy environmental evaluation of the governments. Westray coal mine development. It recommended that Frame convinced the Nova Scotia Power Corp., a federal funding be contingent on the satisfaction of 17 publicly owned utility, to commit itself to buy 700,000 environmental protection conditions. tons of coal annually at about $74 a ton (a very generous Why do we insist, as a matter of law, that careful rate, given these production costs were estimated to be consideration of the external environment must go into $29 a ton (30)) for a coal-fired power plant being the decision to mine while no such consideration is to be constructed in Trenton, Nova Scotia. The reason given by given to the internat environment? Obviously, different the government for entering into this agreement to legal requirements reflect different politics. The politics of purchase a set amount of Westray coal was that the Foord the environment are different, at least in part, because seam mine coal was low in sulphur, thereby reducing the there is no perception that the interests of the company in cost of the pollution controls which would have to be making a profit from its investment and the interests of installed by the government at its power plant. the public in protecting the environment are coincidental. Even with this guaranteed sale at this high price, Nor is there any assumption that contract is an Frame and his companies which owned the leases were instrument through which conflicts will be negotiated. finding it difficult to get private financing for the

18 Summer 1993 NEW SOLUTIONS operation. Further government assistance was sought and a deal for instrumental reasons will be more obvious than obtained. The federal government guaranteed 85 percent at other times. Clifford Frame was, apparently, a person of a $100 million loan obtained from the Bank of Nova with special influence and some federal and provincial Scotia. In addition, it turns out that the federal politicians were very keen for reasons of their own to take government provided advantage of his up to $8.75 million by blandishments. way of interest What made the subsidies. Another "To further secure the financing of the mine, the Westray mine situation hand-out of $3.6 million provincial govemment also entered into a deal particularly ripe for this to this private risk-taker whose details It has refused to disclose, but kind of collaboration was was provided by the the fact that the mine 1995 CanLIIDocs 20 federal government by whose outlines are known. The agreement was located in the way of a development requires the provincial govemment to guarantee provincial riding of subsidy to start the the sale of an additional 275,000 tons of Westray Donald Cameron, now mine. (31) coal annually. The bottom line is that Westray the Premier of Nova The provincial gov- has a guaranteed market for 975,000 tons of coal Scotia. While negotia- ernment also was asked tions for federal support to do its bit, and it did. annually." were still underway, It lent $12 million to Cameron was a pro- Curragh Resources Inc., vincial development the principal of which minister and cam- was not to be begun to be repaid until 1995. To further paigning to hold his seat in a fiercely contested election. secure the financing of the mine, the provincial govern- Although he had hoped to announce that a deal had been ment also entered into a deal whose details it has refused reached days before the election, some details had not yet to disclose (32), but whose outlines are known. The been agreed upon. This did not prevent Clifford Frame agreement requires the provincial government to from announcing that the development of the Westray guarantee the sale of an additional 275,000 tons of mine would go ahead. (33) Four days later, Cameron was Westray coal annually. The bottom line is that Westray re-elected by a slim margin of 753 votes. Cameron was has a guaranteed market for 975,000 tons of coal annually. subsequently appointed Minister of Industry, Trade and One question which these arrangements raise is why, Technology. Although an agreement still had not been if various levels of government were to take virtually all reached on the federal government's support, funds were the risk of financing the mine and to purchase virtually released to Westray by Cameron's ministry to allow ail of its output, did they not decide to own and run the construction of the mine to commence in April 1989. (34) mine and reap the profits, if any, on behalf of the citizens? Later, when Cameron decided to run for the leadership of The answer, at bottom, is to be found in the logic of the his party in 1990, he quickly raised $41,600 in campaign staple-led economic growth model and the depth of the contributions in November, including $4,450 from free enterprise ideology it has generated. Maritime Steel and Foundry and $3,500 from Satellite It is scarcely controversial to assert that our Equipment. Both companies had been awarded work on a governments favor private economic activity over public $5-million contract with Westray to build a spur line to enterprise as a means to create the welfare which needs to the mine. No other candidate could corne close to be maintained to legitimate them and to keep any matching Cameron in campaign contributions, the nearest particular government in power. In this context, being then Tourism Minister Roland Thornhill, who politicians who feel the need to demonstrate to their raised $16,600 during the same period. (35) On February constituents that they are promoting economic prosperity, 9, 1991, Cameron was elected leader of the party at its are willing, maybe even eager, to enter into cozy deals convention and became Premier. On the face of it, it had with private entrepreneurs who promise to create jobs if been good for him to be seen as the creator of wealth and their conditions are met. Of course, in any private jobs. Indeed, the Liberal provincial opposition alleged enterprise economy some would-be entrepreneurs will be that the Westray deal was a case of crude pork barrel in a better position to influence politicians and policy- politics. That argument was made all the more makers than others and sometimes the political will to do vehemently by it because it had been federal Liberals

NEW SOLUTIONS Summer 1993 19 who had set up the now-threatened Cape Breton mine interest rules are continually being made and revised, all and it was provincial Liberals who held most of the seats without great success, precisely because government in the Cape Breton electoral ridings. actors and private capitalists need each other. All that is There was more fuel for the Liberals' fire because peculiar about this situation, then, is who the actors were Pictou County is located and how they came in the federal riding together. Clifford Frame's known as Central Nova. career as a professional This was the very riding "The point being made here is not that there was mining engineer and his in which the then new a particularly ugly and unusual kind of company's non-involve- leader of the Progressive conspiracy. it was not just a case of crass self- ment in coal mining

should not have given1995 CanLIIDocs 20 Conservative Party, the contrary, the argument is Brian Mulroney, chose advancement. To him an advantage over a to run for his first that, In a political economy where government -corporation such as Sun- federal seat in 1983. At sees itself as a facilitator of private development cor. Perhaps his personal the time, it was judged and dependent on its success, there is a strong ingenuity made the difference, but perhaps too dangerous or tendency for this kind of decision-making to impractical for him to also his contact with a run in his native become the norm." former Progressive Con- Quebec. Central Nova servative cabinet mem- was selected because it ber from Nova Scotia, was a safe Conservative seat, then held by Elmer McKay, Robert Coates, helped him out. Frame had hired a a senior Conservative Nova Scotia politician. In the next lobbyist who was on Coates' staff. Coates has been election, Brian Mulroney switched to the riding he now quoted as saying that he acted as the effective marnage holds in Baie-Comeau, Quebec, and Elmer McKay re-took broker between Frame and the two levels of government. Central Nova and became a cabinet minister in the newly (38) elected federal Progressive Conservative government. He For our purposes, the most significant point is that in was to be a main protagonist of the development of the this kind of staple extraction model of development, Westray mine, fighting hard to maintain the federal occupational health and safety becomes a secondary government's support when it began te waver in the face consideration for the decision-makers. This was of public pressure mounted by Devco, aided by a federal manifestly true in the Westray case. In the absence of a Liberal member of Parliament from Nova Scotia, David legal requirement to assess the health and safety Dingwall. The fact that Don Cameron has acknowledged consequences of this project and to develop a design that he spoke with Brian Mulroney to seek his support for which minimized risk to workers as a condition of the Westray project (36) only adds to the perception that granting it the permits and funding it required, the decision to open the Westray mine, after giving very government officiais were not inclined to raise obstacles favorable terms to a friend of the ruling party elite, was which might complicate and delay the political deal- taken because it advanced the immediate needs of that making. political elite. In sum, the way in which these decisions are made The point being made here is not that there was a means that there is a bias towards a kind of economic-cost particularly ugly and unusual kind of conspiracy. It was benefit calculation in which the benefits of realizable not just a case of crass self-advancement To the contrary, profits are given great weight while the costs of the argument is that, in a political economy where occupational health and safety harm are discounted government sees itself as a facilitator of private severely. Property owners and politicians, that is, non- development and dependent on its success, there is a workers, assume that productivity, especially in coal strong tendency for this kind of decision-making to mines, entails risk and that there is nothing unusual about become the norm. Indeed, Frame was able to structure a that. Those risks are worth taking if profit is likely to be similar deal, with an NDP-led territorial government, in made. The risks can be dealt with by good monitoring order to reopen the Cyprus Anvil zinc-lead mine in Faro and adept technological adjustments. Indeed, CANMET's in the mid-1980s. (37) The dangers to political democracy report was later used by the Minister of Energy, Jake Epp, posed by this tendency are so great that conflict-of- when he was asked to defend the federal government's

20 Summer 1993 NEW SOLUTIONS decision to involve itself in this kind of mining. Epp engineering company was hired to investigate the cause noted that while the "memo recommended that it was of the collapse. No orders were issued in respect of this feasible to open the mine ... we were ail aware of the mine collapse. The department did, however, issue an order on having high methane deposits, and that with the new June 24, 1991, to forbid any more electrical arcing in the technology there would mine, a highly dan- have to be a learning gerous practice in a site curve." (39) Nothing with so much in- could be more explicit: "In sum, the way in which these decisions are flammable gas. Again, whatever learning had made means that there is a bias towards a kind no charges were laid. to be done was to corne of economic-cost benefit calculation in which (40)

at the expense of On July 29, 1991, there 1995 CanLIIDocs 20 workers' bodies. Basic- the benefits of realizable profits are given great had been a report to any, workers' major mie weight while the costs of occupationsl health Nova Scotia's Chief in helping to develop and safety harm are discounted severely. Mine Inspector, Claude better health and safety Property owners and politicians, that is, non- White, to the effect that standards is by the pro- the levels of both fine vision of a body count. workers, assume that productivity, especially ln coal dust on the mine coal mines, entails risk and that there is nothing floors and methane B. Operating the unusual about that Those risks are worth taking concentration readings Mine: The Learning if profit is likely to be made." in the air were relatively Curve in Action high and presented a As we noted earlier, risk. A similar warning construction of the mine had been sounded by commenced in April 1989 with federal backing promised Westray's private consultant, Associated Mining Consul- but not in place. Because it had not materialized, tants Ltd., on July 3, 1991. (41) No government action to construction halted at the end of July 1989. Extensive enforce better standards seems to have been taken. lobbying by the provincial minister, Don Cameron, and The question of the safety of the Westray mine was by lamer McKay, now the federal Public Works Minister, now beginning to attract the attention of those who had eventually was successful in opening up the dam previously expressed opposition to the undertaking based blocking the flow of federal monies. Construction on their interest in protecting the Devco mine in Cape resumed in January 1990. But, the delay increased the Breton. Bernie Boudreau, the provincial Liberal industry difficulty of meeting the scheduled opening date of critic, raised the issue of the May 23 roof collapse in the September 1991, a crucial date. It was at that point of time legislature at the beginning of July. He argued that that the Trenton generating station, which also was under lb]ecause of the fault structure and gas contained in the construction, was expected to need its first supply of formation of coal seams in Pictou County, Westray mine Westray coal. Not surprisingly, this pressure to construct is potentially one of the most dangerous mines in the quickly was linked to safety problems. world." He alleged that Leroy Legere, the Minister of On December 12, 1990, the Department of Labor Labor, was ignoring safety standards because the mine issued its first order to Westray. The inspectorate found was located in the riding of the Premier, Don Cameron. that the Westray mine Md been conducting underground Legere denied the charge: "I would assume that my blasting without qualified people being present. As was department and the mine safety people are doing as good to be the case with future orders, work was not stopped a job at Westray as they are doing at ail the other mines in until the order was complied with and no charges were Nova Scotia." (42) laid. Rather, the company was advised that a failure to The Westray mine opened on schedule in September comply with the order would constitute a breach of the 1991. In October there was more public questioning about law which might lead to a prosecution. The violation the safety of Westray. In the two weeks leading up to which gave rise to the order in the first place apparently October 20, 1991, there had been three more rock fails at did not, in the department's view, merit a sanction. the mine. The ministry and Westray officiais met. Ail in On May 23, 1991, 24 metres of roof fell in. all, the government found, there had been seven such Fortunately, no miners were injured. An independent rock falls since the development began in 1989. The report

man« NEW SOLUTIONS Summer 1993 21 of the meeting shows that the ministry officiais came dust be kept nearby. (48) Between February and April away satisfied with the precautionary means taken by 1991, that is, during the preparatory construction before Westray. Apparently, the owners had implemented a the mine opened, inspectors pointed out the need for geomechanics program and hired a geotechnical engineer more limestone dust to be put down on at least nine to assess ground occasions. As already conditions on a daily noted, a similar report basis. (43) The in- was issued in July 1991. spectorate's willingness "The Westray mine opened on schedule in When the mine did open to accept Westray's September 1991. In October there was more in early September 1991, assurances that safety public questioning about the sate of Westray. McLean dedared himself was being taken care of satisfied by the1995 CanLIIDocs 20 was to repeat itself. ln the two weeks leading up to October 20, 1991, Westray's management On November 4, there had been three more rock tells at the mine. plan to put a coal 1991, the Minister of The ministry and Westray officiais met. Ail in ail, dusting plan in place by Labor issued an order the government found, there had been seven the end of September. directing Westray to such rock falls since the development began Apparently, the plan was develop written rules to not implemented ensure that mine in 1989." because, on April 29, workers should not 1992, only 10 days before work in areas where the the explosion, the roof was not supported and it required the corporation to Ministry of Labor issued formai orders to Westray keep records of the rock falls which had occurred and of requiring it to comply with the statutory requirements. In any which might occur in the future. (44) Clearly, there addition, management was to design a plan for spreading was by then a recognition within the ministry of the the stone dust in an efficient manner. As is now known, dangerous conditions created by Westray's mining the ministry's inspectorate had not checked to see activities. But this alertness did not lead to precautions whether there had been compliance with these orders capable of averting further problems. Indeed, a miner by when, on May 10, the explosion occurred. the name of Ryan has now told the press that, in February What this officially documented record of breaches of of 1992, there was another cave-in. (45) existing safety standards and procedures makes clear is On March 28, 1992, there was yet another cave-in that, as in other mining disasters, violations preceded the which caused ministry officiais to visit the mine. White disaster. Moreover, the almost unrelenting flow of health there, they found that the air sample taken for testing and safety problems is a clear indication that the Westray contained four percent methane. The scientific operation remained firmly situated at the bottom of the assumption is that, when the methane concentration steep learning curve its promoters had said they would reaches five percent, it becomes explosive if ignited. As a climb. Indeed, alarming evidence which shows that no precaution, the law requires work to be halted and miners steps were taken to climb the curve has emerged as to be removed when the methane level reaches a level of miners have corne forward to tell about their experiences. 2.5 percent of the ambient air. When it reaches Two such employees, Evans and Taje, tell horror concentrations above 1.25 percent, electricity to the area is stories. They have spoken of the use of a cutting torch in to be shut-off. (46) But, on March 28, 1992, production the mine, and how this had led to a fire. They have said was not halted. Indeed, the Nova Scotia Department of that there was no firefighting equipment or rock dust labor's safety officer, Albert McLean, indicated that he nearby, although the regulations promulgated to prevent was satisfied that Westray management had the situation fires in mines required this. On one occasion, they said, under control. (47) Throughout the period, the amount of the roof gave way and a big red flash was seen. The coal dust on the floors of the mine had been a constant workers were alarmed. These two former employees also concern. The coal dust is explosive. To combat this spoke of poor training and supervision. Taje daims that, danger, a standard precaution is to put down limestone on a number of occasions, he had reported his concerns to dust to cover it. The law requires 20 bags of stone dust to his supervisors and once to the provincial authorities, but be stored near every working section and, where there is that he had been ignored. He, Evans, and one other mom and pillar mining, that a "suitable amount" of stone person had quit two weeks before the explosion, because

22 Summer 1993 NEW SOLUTIONS of the danger to health and safety. They were ail he has argued that "some people are assuming that experienced miners. (49) Dwight House, Randy Roberts, human error is the only possible cause of such a tragedy and Don Wentzel also had quit their employment because ... Nature cannot always be predicted or controlled ..." the mine was too dangerous. In House's words, the mine (54) was disaster waiting to happen," "the methane levels But the inspectors' reports support the workers' were so high that at times we had to stop work." He has allegations, not the contentions that human agency may spoken of one particularly traumatic incident when he have had little impact. They reveal that, on two occasions, was operating bis scoop with two men in the bucket. He open containers of oil were detected in working areas and pulled the bucket back just a minute or two before there that, on two other occasions, unauthorized vehicles, that was a cave-in. "If I hadn't moved within those two is, vehides which had no devices fitted to prevent sparks, minutes, me and those other two guys probably would were found to be in use underground. (55) And, as has have been buried." Randy Roberts has told the been noted, the inspectorate had issued at least one order 1995 CanLIIDocs 20 Cornerbrook Western Star that he left his Westray forbidding further dangerous electrical arcing in the employment in February because "it was the only mine in mine. where I never felt sleepy. I was too scared of the mine's In sum, there were many warning signais. Inasmuch working conditions to ever get sleepy." (50) Another as attention was paid to them, they were treated as a miner, Wayne Gosbee, has said that he and his fellow series of unrelated, even natural, events. There seems to workers often talked about the mine's safety problems. In have been no concerted effort to follow-up on the bis view, "as far as the company doing all they could do promises to provide the best possible equipment and to make it safe on the scale of 1 to 10, I would rate them technology. While there was a good deal of monitoring — about a 2." (51) Walter Ryan, a miner who quit because of 56 inspector reports were issued — there was no vigilant his anxiety about safety only to return to Westray because enforcement. At no stage did the ministry exercise its he needed the money, is now apparently second-guessing enforcement power directly, preferring polite request and himself as to whether he ought to have spoken up more. consultations to penalties. This is the norm. He has said that there were tractors in the mine with no jackets to prevent sparks, that there were poorly covered batteries, that oil containers and oil rags were left lying III. ENFORCEMENT - 'STICKS AND about in the mine, and that he saw an acetylene torch STONES MAY BREAK MY BONES used underground. He recounts how experienced miners were aware of the presence of methane because they BUT WORDS WILL NEVER HURT ME' suffered from light-headedness; they commented on the A. The Norm of Non-Enforcement staleness and the rankness of the air. The workers The mots of the norm of non-enforcement go back to suffered from dizziness and headaches. In addition, Ryan the beginnings of direct state health and safety regulation daims that there were at least 16 cave-ins, one of which in the mid-19th century. From the time inspectors were had caused him to quit. (52) Other miners have reported first appointed to enforce statutory minimum standards, that, while work was to be stopped when levels of they have relied upon gentle persuasion rather than methane reached 2.5 percent of the air, levels of 3.5 and vigorous enforcement through prosecution to obtain 3.75 percent were common. They said methane monitors compliance. The approach, which typified the were defective. (53) enforcement of this first wave of legislation, was As these miners' stories made the news, Westray premised on a number of assumptions. management countered them with stout denials. Colin The first was that employers who violated the Benner, the executive vice president, operations, of statutory requirements were not, by and large, guilty of Curragh Resources Inc., has rejected any arguments that criminal misconduct. This was true because illegalities the company allowed flagrantly unsafe practices in the were graded. Only some were serious enough to be mine such as smoking, the use of acetylene torches or the treated as criminal. They would be so characterized if the employment of machines with electrical starters. He has conduct served no useful purpose and/or offended argued that it is unreasonably prejudicial to look for society's norms. Any other kind of violation was deemed human agents (especially if these agents are said to be to be quasi-criminal at worst. (56) In respect of corporate managers!) as the cause of the accident. occupational health and safety, the activity being Reflecting the conventional wisdom about risk creation, regulated — the private production of goods and services

imam! NEW SOLUTIONS Summer1993 23 was socially useful. Hence it was simply not health and safety. Rather, it was because the failure to appropriate to treat the wrongdoing of the private include workers had encouraged apathy on their part, capitalist engaged in such activity in the same way as the leading them to be careless at work, and had denied them misconduct of a common criminal. Moreover, there was a the "natural right" to participate in decisions affecting deeply held belief that workers voluntarily assumed risks their own health and safety. To some extent, the reformers in the workplace and, even if the market could not be were also concerned about the deficiencies of the existing relied upon exclusively to determine the permissible level external responsibility system. The aim of the reforms of risk, the seriousness of exposing workers to risks in they offered in this respect was to rationalize and excess of stipulated levels was attenuated by their modernize the bureaucracy. In particular, the reformers apparent willingness to incur them. The fact that the sought to overcome the fragmentation of authority over illegal employment of under-age children in unhealthy health and safety regulation and they also saw that the 1995 CanLIIDocs 20 conditions was viewed as a more serious wrong than the capacity to deal with occupational health problems, as violation of existing health and safety standards was a opposed to more traditional safety hazards, needed to be reflection of the fact that the perception of consent expanded. (58) influenced the categorization of the misconduct in The net effect of these changes was, on the one hand, question. to create new opportunities for workers to contest health A second related assumption was that employers' and safety issues on the shop floor, and, on the other violations were not the result of intentional wrongdoing. hand, to further entrench the traditional practice of Rather, ernployers were perceived to be socially enforcement on the basis that the new improved internat responsible citizens who, through ignorance or responsibility system could now be relied upon as the organizational incompetence, had failed to observe the primary means through which compliance would be law. Inspectors firmly believed that safety paid; that achieved. The mie of the inspectorate as a support system rational, profit-maximizing employers would find it was for the internai responsibility system was emphasized. in their self-interest to comply with the law. After ail, the Format sanctions were still only to be used as a last resort law itself did not require uneconomic safety measures. It or in the event of a fatality or serious injury. Thus, the stipulated that employers were only required to take practise of external enforcement changed little, although measures "reasonably required in the circumstances" to there were many more standards to enforce. protect workers' health. Econornic feasibility was always The opportunities created for workers to better their a pivotai consideration when deciding what was lot through the new internai responsibility system, reasonable. Moreover, because workers were assumed to however, were carefully circumscribed. Workers were have an interest in their employers' economic viability, it given a right to know about hazards present in the could be concluded that there was a common interest workplace (induding the right to have a worker-delegate between employers, workers and the state in matters conduct periodic inspections), a right to be consulted and pertaining to health and safety. It followed, therefore, that a right to refuse unsafe work. Only the last right provided health and safety was not an issue of conflict which workers with the means to take direct action for their own needed to be addressed through the industrial relations protection, but it was carefully defined as an individual system. Rather, the internai self-monitoring system of the right. Health and safety strikes were not permitted employer could be relied upon to achieve compliance, (although groups of workers might refuse if each person subject to occasional supervision, instruction, reminders, felt endangered individually) and worker health and and gentle prodding, by the state. (57) safety representatives could not order dangerous Beginning in the 1970s, a second wave of operations shut down pending a state inspection. What occupational health and safety legislation swept through workers could get out of such a scheme depended, to a much of the English-speaking industrialized world. In significant degree, on their relative power resources. part, the inspiration for this legislation was rooted in the Clearly, the opportunity to make gains was greater for failures of the old model of regulation. The old internat unionized workers in relatively secure industries than it responsibility system which had, by and large, excluded was for non-unionized workers whose employers were worker participation was no longer seen to be apposite. operating at the margin. In addition, workers could make This was not because the architects of the new legislation only limited use of what was potentially a very useful were willing to acknowledge that there was a resource, the state inspectorate. Because inspectors were fundamental conflict between labor and capital over instructed to be facilitators first, workers calling upon

24 Summer 1993 NEW SOLUTIONS them to back their daims were likely to be told to be Nova Scotia's position as a leader in health and reasonable in their demands and to resolve their safety law, at least on the books, has not been sustained. differences with their employers through the internai The Coal Mines Regulation Act, although periodically responsibility system. (59) updated, has not been amended to increase workers' Thus, the dominant control rights over the assumptions regarding operation of the mine health and safety were and, although additional not questioned at ail. "What workers could get out of such a scheme Mes have been enacted, The view that criminal depended, to a significant degree, on their today the maximum fine law and/or external relative power resources. Marly, the for most violations is a enforcement Md little if paltry $250. As well, the 1995 CanLIIDocs 20 any role to play and that opportunity to make gains was greater for government must lay health and safety was a unionised workers in relatively secure industries charges within six realm of consensus, not than it was for non-unionized workers whose months of the occurrence conflict, remained firm- employers were operating at the margin. In of the violation. (63) In ly entrenched in the addition, workers could make only limited use of regard to occupational health and safety health and safety law bureaucracy. (60) Need- what was potentially a very usefui resource, the generally, Nova Scotia less to say, the enforce- state inspectorate." was one of the last two ment of mine safety was provinces (the other not significantly differ- being Prince Edward ent from the model described here. (61) Island) to enact second-wave legislation of the kind described above. It did so only in 1985. (64) The B. The Case of Nova Scotia maximum fine for a violation of that act is $10,000. This is Nova Scotia was a leader in regulating coal mine at the medium to low end of the sprectrum of maximum safety in the 19th century. Largely this was the result of fines provided for in similar legislation in other the efforts of the Provincial Workmen's Association, the provinces. (65) province's first colliers' union, formed in 1879. It lobbied Although there are deficiencies in the available data hard to improve health and safety regulation in the mines on health and safety enfoncement in the province, making and met with some successes, especially in the aftermath categorical statements difficult, what evidence there is of disasters. A flood in October and an explosion in suggests that persuasion is still the primary strategy and November 1880 at the Foord seam killed 60 workers in that prosecutions are rare events indeed. For example, total. These disasters led to the enactment of legislation from 1985 to 1990, a total of 14 companies were charged which strengthened the external responsibility system. It with offenses under the Occupational Health and Safety authorized the appointment of deputy inspectors and it Act and the maximum fine imposed appears to have been made special provision for gas-related inspections. The $2,500. No mining companies were prosecuted, however, internai responsibility system was also reformed. The law despite the fact that, according to another tabulation, empowered workers at each colliery to form two-men between fiscal years 1987-88 and 1991-92, 1037 directives committees which were allowed to inspect the mine at were issued to mining companies. The fact that directives least once a month and to file official evaluations. In 1884, never result in charges does not mean there is much legislation was enacted which established qualifications compliance, as the Westray saga shows. (66) and staffing requirements. A further legislative victory Viewed in this light, the (non-)enforcement of safety was won in the aftermath of the Springhill mine disaster at Westray was unexceptional. Sadly, then, Leroy Legere, of 1891. That Act gave miners' committees the right to the Nova Scotia Minister of Labor, was likely correct visit scenes of accidents and miners the right to begin when, in response to charges of favoritism made prion to prosecutions of management by affidavit. Despite these the disaster, he declared that "the people in the legislative innovations, mine owners fiercely resisted Department of Labor are not treating the Westray Mine their effective implementation, especially when it any differently than they are treating any other mine in impinged on managerial prerogative. As a result, the province." (67) enforcement remained generally lax. (62) While there is a close fit with the general pattern, the

ammia NEW SOLUTIONS Summer1993 25 specific conditions at Westray which influenced health rights to strip-mine at the nearby Wimpey site (see and safety practices at the mine and the state's response below), but it had to continue to dig underground in to them nonetheless merit doser consideration. First, order to meet its contractual commitments. The miners there is some question as to the technical capacity of the were offered production incentives and the opportunity mine safety branch at the lime Westray opened. It had to work unlimited overtime. (73) little recent experience regulating underground coal These kinds of pressures on operations are likely to mines since the large Devco operation was under federal accentuate the conflict between profit and safety. Firms jurisdiction. The only underground coal mine it was then under a great deal of pressure to meet production overseeing was a rather small operation conducted by deadlines may cut corners to do so. (74) The Westray case Evans Coal Mines Ltd. in Inverness County. As a result of exemplifies this. The violation of regulations controlling this lack of experience, the inspectors may have been coal dust and the frequency of rock falls suggest that 1995 CanLIIDocs 20 unusually reticent to take strong measures in regard to production was being given priority over safety. Here it is enfoncement. (68) apposite to note that there was at least one other major A second consideration is that Curragh Resources cave-in in February and that conditions were highly Inc., the owner of the Westray mine operation, was dangerous during 1992, as the April 29, 1992, orders indebted in 1991 and needed both a good cash flow and indicated. profits from the Westray mine. Its primary business was Third, Westray may have had a particularly cozy the mining of lead and zinc concentrates. relationship with politicians in the province. The staple Depressed world prices for those concentrates, heavy model of development made the region dependent upon investment in a new project, the Stronsay lead and zinc Westray's success to improve its economic well-being. mine in British Columbia, a failed attempt to diversify, Moreover, important politicians, led by the Premier, Don and a 10-week strike by workers at its Faro mine in Yukon Cameron, and Elmer McKay, federal Minister of Public (motivated in part by health and safety concerns (69)) had Works, (both of whom represented the riding in which caused Curragh to lose $98 million on revenues of $225 Westray was located), not only invested provincial and million in 1991. (70) In an attempt to raise money, federal money in the project, but also their political Curragh Resources Inc. tried to interest institutional capital. The inspectors could not have been oblivious to investors in buying convertible debentures from it. The this and may very well have understood that an even security offered these potential institutional creditors was softer approach to enforcement than usual would be the Westray mine. Curragh Resources Inc. was expecting appropriate. This cannot be proved, of course, but the the cash flow from the mine to repay the debt it proposed possibility is real and the initial handling of Westray's to undertake. In the event, institutional investors were application to strip-mine certainly is su .,4: estive of the uninterested. Curragh then announced that it would put impact these relations can have on regulatory regimes. the Westray mine up for sale as a way of raising cash for its sputtering enterprises. The sale never took place. (71) In this context there was a pressing need to get C. The Wimpey Strip-Mine Westray going. The rock fans in October and the ensuing When Curragh Resources Inc. could not sell its public pressure to do something about this kind of risk Westray mine or operate it profitably, at least in the short must have been a real nuisance to a company which was term, it looked for relief elsewhere. Again, the Nova keen to get on with intense production. But the Scotia government came to the party. On or about January corporation's problems only got worse. By October 30, 6, 1992, the government announced that it would permit 1991, it was apparent that Westray could not meet its Westray to do some strip mining, that is, above-ground obligation to supply the coal it had contracted to furnish mining at the undeveloped Wimpey mining site near the Trenton power plant. That plant cannot use coal with Stellarton. This kind of mining presents environmental ash levels which exceed 20 percent. Much of the coal problems. The Nova Scotia government exempted Westray mined had a 40 percent ash level. The excess ash Westray from having to go through an environmental had to be washed out. This took time and cost a great deal assessment. Its justification for this exemption was that it of money. The Westray management was hopeful that, as was only giving a permit to allow Westray to take a the digging went deeper, the ash level would drop. (72) sample for testing purposes. Having been informed of The investment was no longer looking so good. Westray this, the federal government decided that, even though sought to alleviate some of the pressure by obtaining strip-mining would normally be subjected to a fisheries'

26 Summer 1993 NEW sournoNs department review, it would not be necessary to do so in meet its obligation to the Nova Scotia Power Corporation. this case. Potentially, the profit was enormous. The cost of extraction The sample which Westray was permitted to take at Wimpey is much lower than it is at the Westray coal was actually to be 100,000 tons. It was crystal clear that mine site. The cost at Wimpey has been estimated at the Nova Scotia between $14 and $20. (76) government was giving If the selling price to Westray an opportunity Trenton remained at $74, to meet its commitments " ... there was a pressing need to get Westray as is stipulated under the under its contract to going. The rock fails in October and the ensuing original Westray contract, supply the Trenton public pressure to do something about this kind or even something close to it, a handsome yield 1995 CanLIIDocs 20 power plant. This raised risk must have been a real nuisance to a a storm of protest. The of would be obtained by the intensity of the protest company which was keen to get on with intense .Westray coal mining was increased when, on production. But the corporation's problems only operation. (77) Unsurpris- January 17, 1992, it was got worse. By October 30, 1991, it was apparent ingly, Curragh's man- was willing to revealed that Westray that Westray could not meet its obligation to agement actually had obtained a move heaven and earth permit to take out supply the coal if had contracted to fumish the to get permission to mine 200,000 tons if it needed Trenton power plant." at Wimpey. it. The anger was further Curragh hired a firm of fuelled because mining environmental con- at the Wimpey site sultants, Nolan Davis dr began before the Stellarton residents had been advised Associates. This firm submitted a report to the Nova Scotia that a permit had been granted. Curragh's management government and presented it to the aggrieved residents in — Westray's owners — came to Stellarton to say that it Stellarton. This report concluded that the strip-mining was all a sad misunderstanding and it helped establish a poses no environmental danger. Nonetheless, Curragh committee which included local residents to monitor the offered the local people, in addition to some royalties, strip-mining. (75) But, as it turns out, this is flot all that clothes driers, vinyl siding, and air conditioners to help Westray got. them cope with whatever coal dust might be floating As is now known, on November 28, 1991, the Nova around. If developed, the strip would have operated Scotia government, by executive order, granted Westray a within a few yards of 20 to 30 homes in the township of 20-year lease over the Wimpey strip-mine. Westray was Stellarton and the people inhabiting these homes, as well not required to pay anything for this grant. The province as many other members of their community, were very is to get 27 cents for every ton of coal dug out. The upset at the prospect of the strip-mining. In the result, after enormity of the secretly made grant can be gauged from much public controversy, the Nova Scotia government has the fact that Suncor Md sought the Wimpey mine rights refused Curragh Resources Inc. a permit to strip-mine but had been refused them after Novaco, a provincial without first going through a thorough environmental crown corporation established to regulate open pit assessment impact. (78) mining in Nova Scotia, had suggested that there was enough underground coal to meet the existing demand IV. CONSENSUS AT WORK - and that Wimpey could be developed quickly, if necessary. Suncor was only given strip-mining rights THE MYTH OF EQUIVALENT RISK- above the ground of its underground mining zone. TAKING Novaco assumed that Suncor would not easily be able to A central pillar of consensus theory, and the develop both strip-mining and underground mining in regulatory approaches justified by it, is that labor and the same site. capital share a common set of goals. In part, this is so, it is The November 1991 executive order had given argued, because there is some rough equivalence between Westray a potential pot of gold. Shortly after the disaster, them. One aspect of this equivalence is in relation to risk- Westray applied and lobbied for permission to extract taking. Employers risk their capital, workers their lives 900,000 tons per year from the Wimpey mine to permit it to and health. On its face, the notion that these risks are

NEW SOLUTIONS Summer 1993 27 equivalent is absurd. Yet, in capitalist economic theory, ail journalist, Tom McDougall, after a series of interviews values, including the value of life and health, are with miners, wrote: "There's a certain mystique about it monetized and, therefore, comparable. (79) — a soldier-like pride in sticking with a job that would Support for the idea of a shared ideology also derives scare lesser folk witless. There's also a spirit of from the belief that brotherhood — part old- workers voluntarily soldier camaraderie and assume the risks present small-town solidarity." in the workplace. This "As Is now known, on November 28,1991, the (81) belief is widespread. For Nova Scotia government, by executive order, These personal obser- example, some might granted Westray a 20-year lease over the Wimpey vations find resonance say that, if the danger of with the results of more 1995 CanLIIDocs 20 working at Westray was se-mine. Westray was not required to pay formai studies of the as obvious as some of anything for this grant. The province is to get 27 formation of male work- the miners have now cents for every ton of coal dug out. The enormity ing-class identity. For said it was and as the of the secretly made grant can be gauged from example, Paul Willis, in a record compiled by the the tact that Suncor had sought the Wimpey mine study of the education of Department of Labor's working-class boys in inspectors show it to rights but had been refused them..." England, came to the have been, the fact that following conclusion: miners continued to "The brutality of the work and did not exhibit more resistance suggests that working situation is partially re-interpreted into a heroic they were willing to incur the risk. exercise of manly confrontation with the task. Difficult, The idea that workers and employers voluntarily incur uncomfortable or dangerous conditions are seen, not for roughly equivalent risk not only has influenced legal themselves, but for their appropriateness to a masculine doctrine in the past (80), but it continues to serve as a readiness and hardiness. They are understood more rationale for not intervening to protect workers from harm. through the toughness required to survive them, than in It justifies reliance on the internai responsibility system and the nature of the imposition which asks them to be faced the gentle persuasion approach to enforcement that is, it in the first place." (82) justifies the very practices which led up to the Westray In addition to this complex cultural articulation of disaster. For that reason it is important to subject these ideas sexual and class identifies, other psychosocial processes to critical analysis. also shape and constrain workers' perceptions of, and decisions about, risks at work. It has been noted that A. Workers as Risk-Takers workers develop "experience-based" standards which There is no doubt that workers at the Westray mine often depart markedly from official ones. In part, this put their lives and health at risk. The question here is: did occurs because the risk of harm is relatively remote and, they assume the risk voluntarily? The simple idea that in the absence of recent experience of its materialization, miners are a self-selected group of workers who there is a tendency to discount its probability excessively. spontaneously develop a taste for risk does not stand up Moreover, there may be immediate costs to workers if to scrutiny. they comply with safety mules, including physical The list of victims and the stories told by miners who discomfort and increased workload because of poorly have been interviewed reveal a pattern. Some of the designed safety equipment, as well as loss of production miners at Westray were professional miners who moved bonuses. Because safety and productivity often conflict, around the country following employment opportunities, management may endorse, implicitly or explicitly, from Newfoundland, Alberta, Saskatchewan, Northern experience-based practices if they result in increased Ontario, and other parts of Nova Scotia. They needed productivity. (83) jobs. They understood the dangers of mining. This is clear Also, processes of cognitive dissonance play a role from the statements of the miners and their friends. They here. Workers faced with objectively risky conditions may adverted to the risks they were taking, but it seems that adjust, even if only temporarily, their beliefs about the an adaptive culture has evolved among them which safety of the activity in order to avoid feelings of constant enables them to live with the terror of it ail. One fear and uncertainty. (84) Thus, although there were

28 Summer 1993 NEW SOLUTIONS miners at Westray who quit because it was too dangerous, private investors that they seem almost oblivious to risk. others stayed put but now say that they were always They are likely to develop rationalizations for their anxious and afraid. What this suggests is that, when they actions, creating a culture which inures them to daily speak bravely about the dangers they face every day, they fears. In short, they develop what might be described as may be making the most false consciousness. (87) of necessity. To A more mundane, but vulgarize Jung, an nonetheless important, exercise in free will is no "There is no doubt that workers at the Westray reason for the apparent more than doing mine put their !ives and health at risk. The willingness to put up willingly what one question here is: did they assume the risk with bad conditions is

knows one has to do 1995 CanLIIDocs 20 voluntarily? that employers can use anyhow. In short, if The simple idea that miners are a their powers to still going underground is self-selected group of workers who -resistance. This is why the only realistic option spontaneously develop a taste for risk does not statutory regimes, such which these workers stand up to scrutiny." as Nova Scotia's believe they have, Occupational Health and normal emotions like Safety Act, provide that fear must be repressed, workers should not be at least partially. As Alvin Jahn, an uncle of a Westray penalized for exercising their rights under the Act. (88) victim and a former miner himself, said about mining, Certainly, it seems as if Westray management was not "It's an eerie feeling, but it's a matter of daily bread." (85) backwards in repressing obstreperous workers' demands. It is important, therefore, to understand how the Robert Chisholm, the labor critic for the provincial NDP socio-economic environment of Pictou County constrains in Nova Scotia, released copies of Westray's health and workers' choices. Population in the county declined by safety policy. In part this policy recited that "Under no 1.1 percent between 1981 and 1986 and was dispropor- circumstances may information be released to any other tionately comprised by young and elderly people. This person without the express authority of the Vice- indicates a pattern of out-migration among people of President, General Manager of Westray Corporation." potential working age. The reason for this is that local This is in violation of the Occupational Health and Safety employment opportunities are limited. Unemployment in Act. It goes some way towards explaining why the county rose from 9.2 to 17.6 percent during this complaints made by some workers got no action and, period, an increase of 88.2 percent. Average annual family more importantly, why so few workers came forward income in the county for 1986 was $30,913, equivalent to with health and safety issues, though it seems dear that 93.9 percent of the provincial average. However, the many were anxious about their conditions. (89) One percentage of low-income families was increasing. Piche, a union organizer, has said that workers Employment in manufacturing was declining rapidly, approached supervisors with health and safety problems from 32.2 percent of the work force in 1981 to 22.8 percent but "you can only go to the sink so many times before in 1986. Put differently, the number of manufacturing jobs you realize you are not going to get any water." He said decreased by 28.3 percent in five years. (86) that if workers tried to improve safety they were told These conditions not only help us to understand the "you can go down the road and look for another job." (90) behavior of miners before the disaster, they also Intimidation was made all the more effective in the illuminate the reasons why some miners, survivors, and Westray case by the fact that the Westray operation was family members, as well as community leaders in the one of the few mines in the country which was not area, have been calling for a re-opening of the mine. unionized. (91) Cunagh Resources Inc. has had no trouble in having Under conditions such as these, the internai a petition signed by former mine workers, the unions, as responsibility system, which is premised on the notion of well as by local churches, supporting its efforts to start common interests, could not, and did not, work. Randy mining in another spot. In short, what is true in coal Facette, an experienced coal miner, was an employee mining in depressed economic regions, such as Pictou representative on the joint health and safety committee at County, is really a marked manifestation of a general Westray. In his words, was a joke. We never got any truth. Workers are so dependent for their welfare on help at all from the company having actual health and

11•1111111111113 NEW SOLUTIONS Summer 1993 29 safety committee meetings, having a chairman, there was by the employing classes. Each accident leads to both nothing like that." Moreover, he said, the company direct and indirect costs. Obvious direct costs include seldom acted on complaints he passed on from other compensation for lost earnings and pensions for the minous. (92) victims and their dependents. Indirect costs include those At the same time associated with lost that Westray was being work-time, equipment tough with its workers replacement and up- in respect to health and "ln short what is true ln coal mining ln grading, record-keeping safety complaints, it was depressed economic regions, such as Pictou related to the accident, holding out to the County, is really a marked manifestation of a expenses incurred to public that, despite the accommodate returning 1995 CanLIIDocs 20 occasional glare of general truth. Workers are so dependent for workers and to recruit publicity caused by the their welfare on private investors that they seem and train new people. questions raised in the almost oblivious to risk. They are likely to Some of these losses are legislature, it was develop rationalizations for their actions, borne by employers in running a safe mine. the first place, for Indeed, it was reported creating a culture which Mures them to daily example, lost pro- that, only two weeks or fears. ln short, they develop what might be ductivity, increased so before the explosion, described as taise consciousness." compensation, pre- Westray was awarded a miums, penalty assess- John T. Ryan safety ments, training and award. 'The award was granted by the Collodion Institute accommodation. But, some may be passed on by them of Mining, Metallurgy, and Petroleum which based its later. For instance, workers' compensation policies, in the award on the frequency of reportable injuries in any one end, are paid out of workers' wages; increased costs of year. This must be set in context production can be passed on by employers in The earlier quoted miner, Ryan, has stated that the monopolistic or oligopolistic positions, a common company paid workers to avoid reporting injuries to the circumstance in Canada. More important, perhaps, is the Workers Compensation Board. Workers would be paid fact that taxpayers (mostly workers) bear many of the for doing light duties. Ryan said that he himself had been costs. They fund the medical care system, public pension put on such duties on this basis. (93) This hiding of regimes which include disability schemes, welfare, and injuries is reported to be a common tactic used by charitable organizations which look after the victims of employers who are trying to minimize the workers' accidents and their dependents. (96) compensation premiums. (94) A sad irony about the John Second, as has been clearly demonstrated by the T. Ryan Award given to Westray is that the company sent particular circumstances of the Westray case, private one of its workers to get it. The worker was to become property owners are not shy when it cornes to feeding at one of the victims of the May 10 explosion. (95) the public trough. As much as it is possible to do so, they will seek to have governments underwrite their costs. In B. Employers as Risk-Avoiders various liberal democracies, capitalists are able to pursue Before we begin this section, we note again, because this goal more successfully than in others. Canada it is so important, that attempts to compare the risks run presents one end of the spectrum, the end at which it is by employers and workers in respect to health and safety quite possible — and becoming ever more possible — for are grossly distorting. At the very worst, the employing private entrepreneurs to get governments to underwrite classes can only lose money; the workers can actually lose their ventures. Again, we emphasize that it is not just the their lives. But, even if health and safety harm is political chicanery of Nova Scotia politics which is at calculated only in dollar ternis, the employing classes issue. For instance, Curragh Resources Inc., was able to bear rnuch less of the risk than do workers. obtain almost an identical deal to the one it got for the First, the economic costs of the harm caused by Westray venture at its Faro Mine operations in the Yukon. occupational health and safety debilitation is primarily The federal government guaranteed 85 percent of its borne by the workers, secondarily by the government and borrowings and the territorial government, run by the taxpayers, and only thirdly and, to a much lesser degree, NDP, chipped in with an undisclosed public grant (97)

30 Summer 1993 NEW SOLUTIONS Displacement of costs by wealthy owners is no more reduction of the transaction costs involved in contracting than to-be-expected behavior in a class-divided society: with a myriad of suppliers, purchasers and component inevitably, the dominant class will try to socialize the part producers which would otherwise be necessitated. costs at the same time as it privatizes the profits of To achieve these goals a number of legal devices have production. One of the been generated: great triumphs of the (i.) Individuals are hegemony established inveigled to invest some by the employing attempts to compare the risks run by of their capital in a classes in Canada is that employers and workers ln respect to health and corporate venture by a this strategy is safety are grossly distorting. At the very worst, rule which ensures that acceptable because it only that amount of the employing classes can only lose money; their 1995 CanLIIDocs 20 dovetails with one of the the capital is at risk. The cornerstones of working workers can actually lose their lives. But, even If remainder of their assets capitalism in a staple- health and safety harm ls calculated only In are safe from the led growth economy, dollar ferma, the employing classes bear much corporation's creditors. namely, that the state leu of the risk than do workers." Investors have the should help promote the luxury of limited unmediated pursuit of liability. This also entails self-interest as much as the ability to diversify it possibly can. While there are occasional expressions of the investment of their remaining assets. As if this were concern about the efficiency of public hand-outs (98), not enough protection, they are free to take their overall they are seen as necessary concessions to private investment out of any one corporation at any time and capitalists whose willingness to take risks must be sell it to a willing buyer. bolstered to foster general economic and social welfare. This contrasts sharply with the position of the Not only does this line of argument provide a justificatory worker who invests in the same corporation. Ail of the framework for the socialization of costs by employers as a capital she invests is at risk because she cannot safeguard class, it also serves to hide the effectiveness of another some of her body from the physical dangers of the job. important set of risk-diluting stratagems, namely that Moreover, as a practical matter, she cannot get out from employers, as individuals, can use the corporate form as a under anywhere as easily if she does not like her risk-avoidance mechanism. That is, the reasoning also work/investment situation. Aside from the rule which supports the deployment of a facilitating device which requires employees to give their employers reasonable has some surprising effects. notice of their intent to quit, the Tabor market rarely has as Most for-profit activity is carried on through many willing buyers for her services as does the capital corporations. Inasmuch as a corporation's investment market for shares held in viable corporations. may be lost, it makes sense to say that the market can be (ii.) The corporation becomes the legal owner of all relied upon to exercise discipline over the behavior of the little capitals invested in it by individual investors. As corporations. In the aggregate, therefore, the impact of the a legal property-owning person, the corporation has the invisible hand on individuals and corporations will lead juristic standing to invest, sell, lease, buy, and so forth. It to efficient wealth production. If the corporation is an is responsible for the debts of the enterprise and to make appropriate surrogate for individual risk-taking investors, good losses caused by it. the use of this organiz' ational form does not distort the To engage in these business activities, however, the private economic ordering model favored in our kind of corporation needs humans to act for it. Managers and political economy. But, this is not the case. employees are hired to carry out the necessary tasks The corporation has been given the legal standing it under the supervision of a directing board. This has to facilitate profit-making activities. In particular, it is arrangement takes the private investor off the hook. He is designed to permit the pooling of small, discrete holdings not directly responsible for the way in which the of capital into aggregates which can be deployed more corporation, a manager, or an employee acts. Adverse efficiently. In a similar way, diverse human resources and results are the corporation's and /or the managers' skills can be put together in one envelope to make their and/or the employees' problem. Needless to say, there is combined efforts more effective, in large part by a no equivalent way for the worker to pass on the risk of

mua.. NEW SOLUTIONS Sommes 1993 31 injury on the job. The best that she can hope for is that a corporation must disclose their material interests in a some measure of compensation be awarded her for the transaction or dealing. This gives the appearance that the injury site bas suffered as a result of her investment. A corporation is entering into arms' length transactions shareholder not only has a different kind of risk to the with others but, by and large, these are procedural worker engaged in the hurdles, easily cleared. co-operative productive They do not seriously activity, but the impede titis kind of self- shareholder can also "Right from the beginning of modem interested dealing. Vir- ditute the risk in a way incorporation law if was seen that limited tually the only people the worker cannot. investors to who can effective!),

Rabans', added to the ability of 1995 CanLIIDocs 20 Right from the object to these gyrations beginning of modern alienate shares, would Joad individual investors are other shareholders. incorporation law it was trot to care much about what and how, the (100) This counterweight seen that limited corporation did things (provided that If has little effect where liability, added to the continued fo yield adequate returns). The Law there are no other ability of investors to shareholders but the alienate shares, would Times referred to the proposai for limited exploiting ones, This is a lead individual in- liability as a Rogues' Charter." common circumstance. vestors not to care much One of the more about what, and how, remarkable aspects of the corporation did things (provided that it continued to corporate law is that the corporate form is available yield adequate returns). The Law runes referred to the where neither the aggregation of lots of small capital, nor proposai for limited liability as a Rogues' Charter. (99) the savings on transaction costs, are realities. These Nothing in modern corporate law is aimed at blunting the situations (one-person companies, or not very widely incentive to human beings who are shareholders to be held companies) are thç ones in which investors are most willfully oblivious to the harm corporate profit- likely to profit by the legalized manipulation of rules. tnaximiz' ation activities might cause. Individual property This is what happened in the Westray mine affair. owners are induced to be passive investors because their The story of how C.H. Frame used his capacities as apathy allows a large part of the risks created to satisfy an individual promoter, an investor, a management their profit-seeking goals to be displaced to others. This is consultant, as well as a shareholder in a number of dosely particularly odious when the displaced risk is the related businesses, to create a web of corporate maiming and killing of workers. connections and dealings which seem to have left him Not only are the mies of corporate law such that secure and well-off — regardless of how the Westray shareholders can profit from their passivity, they also affair plays itself out — is told in the pages of Curragh inexorably lead to the kind of positive manipulation Resources Inc.% Annual Report 1990 and in the statement which makes a mockery of the daim that individual registered with the U.S. Securities and Exchange investors take risks of any magnitude. In particular, Commission on November 6,1989. (101) shareholders exploit the fact that the corporation in which The beginning point is the incorporation of an they invest has a separate legal personality. This means Ontario company on April 29,1987. (See diagram.) It was that, in a large number of situations, an investor can be named 715914 Ontario Inc. On May 20, 1987, its name any or ail of the following: (i.) a major shareholder with was changed to Curragh Resources Inc. The day it was limited financial responsibility for debts and materialized formed April 29, 1987 — the numbered company risks; (ii.) a senior manager who can create risks which acquired ail of the resource properties and other assets might cause harm to third parties and, perhaps, to the and liabilities of a business called Curragh Resources. corporation, but which enure to bis benefit as a This was a firm which had been established by C.H. shareholder and (iii.) a controlling shareholder and Frame and two partners. Because Curragh Resources had manager who can cause the corporation to enter into been a partnership, its members had been, as a matter of transactions with a business in which he has a direct law, jointly and severally responsible for the debts and interest as an owner or as a shareholder. There are rules obligations of the firm. The firm had been established to which require that persons in controlling positions within acquire the Faro division and other mining properties of a

111111111111111111111 32 Summer 1993 NEW SOLUTIONS company called Cyprus Anvil Mining Corporation. lt had Not only was Frame the principal engineer of the done so. In order to acquire the Curragh Resources coal mining project, he was, at the same time, the very partnership's business, 715914 Ontario Inc. had to raise well-paid chief executive officer of Curragh Resources $50 million. That sum allowed 715914 Ontario Inc. to Inc. The legal ability to act in various capacities and acquire all the assets of Curragh Resources and to guises obviously was exploited to the full by Frame. undertake all of its liabilities. In addition, 715914 Ontario There was also a company called C.H. Frame Consulting Inc. borrowed $7 million to operate the business. In short, Services. Among its businesses was the supply of C.H. Frame and his partners in the Curragh Resources executive officers and personnel to Curragh Resources firm were paid in full for the investments they had made. Inc. In 1987 and 1988, Curragh Resources Inc. paid $.9 Two years later, in December 1989, Curragh million and $1.2 million respectively to C.H. Frame Resources Inc. (the former 715914 Ontario Inc.) bought a Consulting Services for this supply. C.H. Frame

90 percent interest in the mining leases and options Consulting Services also provided management services 1995 CanLIIDocs 20 known as the Westray Coal Property. This interest was to the Westray coal project in connection with the bought from a company known as 630902 Ontario Inc. planning and development of the Westray coal mine. It 630902 Ontario Inc was a wholly-owned subsidiary of a was to get $6 million for this when the mine was in full company called Frame Mining Corporation. In turn, 74 production. Curragh Resources Inc., managed by a board percent of the shares in Frame Mining Corporation were of directors associated with Frame and with Frame as owned by a company called the Westray Mining C.E.O., bought out C.H. Frame Consulting Services for Corporation. (102) Seventy percent of Westray Mining $1.5 million, that is, paid its owners $1.5 million. For this, Corporation's shares were owned by C.H. Frame, the Curragh Resources Inc. obtained the benefits of the man who was the promoter of the Westray coal project. management services contract for the Westray coal As we know, it was he who had concluded the dealings project a Frame-created business obtained benefits from which led to the very favorable conditions for extracting its links with another Frame corporation. (104) coal at the Westray site. It is, of course, quite likely that many of the When Cuiragh Resources Inc. bought 90 percent of payments made to Frame and his associates for the the Westray coal project, it paid $9 million in cash to the projects which he had developed and sold to Curragh then owner, 630902 Ontario Inc., and assumed $13 million Resources Inc. were made by way of shares in Curragh of the liabilities which had been incurred in the Resources Inc. In this sense, Frame, as a shareholder in promotion of the project. Once again, it appears that CH. Curragh Resources Inc., still runs some of the risks arising Frame had recouped his investment. Yet, stated in legal out of the enterprises which it runs. But his other personal terms, nothing unusual had occurred: one mining assets are not at risk. The corporation itself, Curragh development corporation had bought the interest which Resources Inc., is not directly responsible for most of the had been owned by another corporation. But, when monies owed on the Westray coal project. The Curragh Resources Inc. entered into an agreement to buy government of Nova Scotia's loan is secured by the assets the Westray Coal Project operations from a CH. Frame- at the Westray mine and is only collectable after the loan controlled set of corporations, the same C.H. Frame obtained from the Bank of Nova Scotia — guaranteed by controlled Curragh Resources Inc. the federal government has been satisfied. In terms of Curragh Resources Inc.'s list of significant satisfaction of the debt to the bank, Curragh Resources shareholders is now part of the public record. As of Inc. is only required to indemnify the bank and/or the March 1, 1991, the corporation had issued 16,406,302 federal government for $25 million of the $100 million subordinate voting shares and 15,719,737 multiple voting borrowed. All in all, the position of Curragh Resources shares. Each subordinate voting share gave its holder one Inc. shareholders is not much less secure than it was vote, whereas each multiple voting share gave its owner because of the Westray disaster. Since then, however, its 10 votes. C.H. Frame beneficially owned, directly or position as a corporation has deteriorated because of the indirectly, 100 percent of the multiple voting shares. In a poor world market for zinc and lead. It has been forced company report issued in March 1991, Frame indicated into the condition equivalent to Chapter 11 bankruptcy to that he intended to use his voting control to ensure that hold off its creditors and it has given the keys to the all his nominees for directorships would be appointed. Westray mine site to the government of Nova Scotia, The legal governing body of Curragh Resources Inc. was leaving it with the mess. to be his mature. (103) The story makes it clear that, inasmuch as the

momie NEW SOLUTIONS Summer1993 33 dominant model of occupational health and safety or by workers through the internai responsibility system. regulation assumes some equivalence of risk between Historically, health and safety standards have been set at capital investors and labor power investors, the levels which do not seriously infringe on employer assumption is a distortion of reality. Employers, as a class, profitability or prerogative. Workers effectively participate pay relatively little in setting these standards towards compensating principally in an historic victims and are not sense: governments have exposed to the same "C.H. Frame beneficially owned, directly or reacted to previous kind of risk as are Indirectly, 100 percent of the multiple voting disasters, body counts workers. More impor- and undeniable evidence

shares. In a company report issued In March 1995 CanLIIDocs 20 tantly, by clever use of of workers being harmed the corporate form, 1991, Frame Indicated that he intended to use from commonly followed individual investors are his voting control to ensure that all his practices (for example, able to displace the nominees for directorships would be appointed. unguarded machinery). economic costs of injury The legal governing body of Curragh Resources Workers' struggles for and death to workers Inc. was to be his creature." improved health and and to society at large. safety are much less likely to succeed when V. graphic evidence of their losses is not readily available. (106) CONCLUSIONS Now, as capital's mobility is enhanced and global The Westray story demonstrates that the competition intensified, it becomes more difficult bath for assumptions which underly health and safety regulation workers to mobilize and for the state to regulate on their in Canada are inimical to the goal of providing adequate behalf. These conditions also restrict the opportunities for protection for workers. This is because, at bottom, they workers to influence employer-risk creation through the are wrong. internai responsibility system. The superior economic Employer-employee relationships in a capitalist power of employers who may withdraw their capital if economy are inherently conflictual, not consensual. A they deem conditions unfavorable imposes dear limits on truly shared ideology is an illusion; it can only be what any particular group of workers can hope to maintained by artifice and with great effort. Health and achieve. Contrary, then, to another of the assumptions safety issues in particular are likely to undo these efforts. which underly health and safety regulation in Canada, Only workers get hurt at work, not employers. Because of particular social relations are determinative of the level of this the notion of shared risk is, on its face, unbelievable. risk. At any level of productivity, different political and This is why so much effort is put into creating the image social structures, and the balance of forces within those of mutual concern about physical working conditions and structures, will produce different levels of risk. The why there are repeated assertions that responsible degree of danger at work is not just simply related to employers, governments, and employees enjoy a shared natural conditions or technical capacity. ideology. It also partially explains why influential In this context, the Westray story is illuminating industrial relations and health and safety experts insist precisely because the particular conjuncture of unequal that health and safety problems should not be resolved in power and the near-total acceptance of the need to please the same way as other industrial relations problems are private capital made the working of the health and safety when there is an impasse, that is, by controlled employer- regulatory machinery so fraught with danger. But it need employee confrontations. To allow them to be settled in not be this way. Because risks and regulatory regimes are this way would undermine the carefully constructed socially constructed, a range of mediations are possible myth of common interest. (105) within an untransformed social system. The history of To date, the effort to uphold this myth has been health and safety regulation attests to this. We have largely successful and it permits profit-oriented already described three stages in the historical employers to build risks into production processes on the development of health and safety regulation in capitalist basis of cost-benefit calculations which suit them, subject economies: market regulation, weak command and only to whatever constraints are imposed by government control regulation, and weak worker rights regulation.

11111111111111MI 34 Sumner 1993 NEW SOLUTIONS Worker struggles and changing economic, political, and and safety may be exploited to advantage. There are ideological conditions made these developments possible. limits, of course, to the gains which can be made by Comparative studies provide further evidence that a seeking to take advantage of employer and government range of mediations is viable. For example, in Sweden hypocrisy. But it may be possible to get a better level of where workers' political mediated regulation, and economic resources setting the stage for are highly developed, further struggles until stronger worker rights "Employer-employee relationships in a capitalist the structural limits of and more protective economy are inherently conflictuel, not change are reached. (111) standards have been consensual. A truly shared ideology is an To this end, much more

legislated. At the other vigorous and frequent 1995 CanLIIDocs 20 end of the spectrum, illusion; If can only be maintained by artifice and criminal prosecution, workers in the United with great effort Health and safety issues in posited on the reckless States enjoy fewer particular are likely to undo these efforts. Only disregard for human life participatory rights. workers get hurt at work, not employers. exhibited by employers (107) Moreover, even Because of this the notion of shared risk is, on when they willfully within a particular ignore existing standards jurisdiction, the actual its face, unbelievable." or engineer unacceptable operation of the risks into an enterprise, regulatory regime is would help focus responsive to changes in the balance of forces. We have attention on the fact that employers make all the already mentioned the strengthening of enforcement in important decisions on health and safety and workers Ontario which began during the NDP-Liberal Accord in take ail the risks. Such anti-democratic practices fit poorly the mid-1980s. Developments in Sweden and the United with the portrayal of a shared ideology and of consensual States also are instructive. The retreat of the Swedish relations. Hoisted on their own petard, employers and social democrats on the issue of economic democracy, the governments may accept, or even initiate, measures move toward integration with Europe and the recent which strengthen workers' participatory rights, giving electoral defeat of the social democrats, all impact them greater control over their work environment. (112) adversely upon the administration of health and safety In the same vein, there should be a concerted effort to and the ability of workers to make use of their legal de-mystify the corporate form. The thrust of this rights. (108) In the United States, the election of Reagan endeavor should be to show that real flesh and blood led to a gutting of the health and safety administration human beings profit from the maiming and killing which without any formai change in the law whatsoever. (109) goes on in the corporate-owned enterprise. This will In sum, because a range of mediations is possible within make it more difficult for governments, even conservative any one set of social relations, the regulation of health and ones, to hold fast to the view that there is no question but safety can be improved in Canada without waiting for that economic welfare should be produced primarily by transformation. the private sector rather than the public one. The notion At a minimum, the political struggle must begin from that the private sector must be supported at any cost, the perspective that, "There is nothing subtle, refined, even at the expense of the lives of people like those of the genteel or courtly about this stru le. This IS war. This 1S miners at Westray, may have to be addressed more life and death." (110) This war, however, can only be explicitly than it is at the moment (113) fought one step at a time. These tactics can be employed from within the We have written the Westray story before the reports existing scheme and its harmful assumptions. If of the formai inquiries have been handed down because purposefully engaged in, they may yield some positive we believe that our analysis of events already clearly results. It may be that the Westray body count will not points to several viable strategies and goals, unlikely to lead to yet another instance of self-righteous posturing be identified by a commission which does not question and band-aid solutions offered by complacent elites who the underpinings of current health and safety regulation. have not been forced to change their beliefs. Rather, these In particular, we believe that the dominant class's tactics may help generate a political and ideological insistence that it is truly concerned about workers' health climate in which the radical surgery which is required

NEW SOLUTIONS Summer 1993 35 will be on the agenda, one in which the workers will be inquiry could go on, but only after the processes which the chief surgeons. might lead to the imposition of quasi-criminal and criminal sanctions had been completed. POSTSCRIPT This not only suspended the inquiry, but led to the abandonment of the 52 charges belatedly laid under the The events surrounding the Westray disaster provincial health and safety legislation in respect of the continue to unfold. The provincial Ministry of Labor laid violations discussed in the text. 52 charges against the company and four mine managers The RCMP has now laid charges of manslaughter arising out of the sorts of violations of health and safety laws discussed in the paper. The timing of the charges and criminal negligence against Curragh Resources Inc., was dictated by the approaching end of the limitation Gerald Philips, the former Westray mine manager, and period. Meanwhile, the Royal Canadian Mounted Police Roger Parry, the former underground manager of the 1995 CanLIIDocs 20 mine. While this is to be welcomed because it underscores (RCMP) investigation into possible criminal wrongdoing the seriousness of the events, it does not negate the need was continuing, but met resistance from Curragh open-ended political inquiry into Resources Inc., the mine's owner. Curragh successfully for a more the systemic brought an action in court forcing the ROMP to retum a failures of the regulation of occupational health and large number of documents it had seized on the basis that safety outlined in this paper. If this is not done, we can they were protected by solicitor-client privilege. The expect more tragedies. provincial inquiry also ran into legal obstacles. Four of the mine's managers brought an action in the Nova Scotia EDITOR'S NOTE Death by Consensus: The Westnzy courts to put the inquiry on hold until after any and all Story was originally published last November by charges either under provincial health and safety law or the Centre for Research on Work and Society, York University, Suite 201, 4700 Keele the Criminal Code have been dealt with. This is a common strategy. It is based on the daim that if the Street, North York, M3J1P3, Canada; telephone: (416) 736- inquiry were to be held first, people could be compelled 5612; FAX: (416) 736-5916. It was No. 3 in its Working to give evidence which may be used against them in Paper Series. subsequent proceedings. It is argued that this would The Centre addresses the issues arising for labor out violate the constitutional right against self-incrimination. of the present, volatile transformation of the Canadian Also, it is claimed that the publicity generated by an world of work. It links the labor movement and inquiry would prejudice the right of the accused to an academics in research, education, and policy formulation. impartial hearing. In this case the Nova Scotia Court of It also publishes a newsletter.The director of the centre is Appeal determined that the provincial commission of Carla Lipsig-Mumme.

REFERENCES 1. Table of Recorded Coal-Mining Explosion Fatalities Pictou County, 1838-1952 yer Number Killed 1838 2 1858 2 1861 3 1872 60 1880 44 1885 13 1914 2 1918 88 1924 4 1952 19 Source James M. Cameron, The Pietcmian Colliers (Halifax: Nova Scotia Museum, 1974), 163-253. These recurring episodes only came to an end when the incidence of coal mining declined sharply during the 1960s. Almost ail of the coal mining which led to these l'accidents" in Pictou County took place as investors sought to take advantage of a particularly rich deposit sited there, known as the Foord seam. Westray was the most recent adventurer to seek to extract profit from that treacherous seam. 2. Minets have the third highest fatality rate in Canada, after forestry and fishing. It is over seven times the average. Labor Canada, Employment Injuries and Occupational Illnesses,1985-87 (Ministry of Supply and Services, 1990), Table 6.

36 Summer 1993 NEW SOLUTIONS 3. The government of Nova Scotia has appointed a judge to head a commission of inquiry; the Royal Canadian Mounted Police (RCMP) bas begun a police investigation; the minister responsible for mine safety in the province has ordered his own department to investigate its performance and the causes of the disasters; and the owner of Westray Mine has hired its own investigation team. 4. John Braithwaite, To Punish or Persuade (Albany: S.U.N.Y. Press, 1985); Andrew Hopkins, "Blood Money? The Effect of Bonus Pay on Safety in Coal Mines" (1984) 311 Australia and New Zealand Journal of Sociology 23; and Harry M. Caudal, "Manslaughter in a Coal Mine," The Nation, 23 April, 1977. As the text will show, such violations had preceded the explosion at Westray. 5. For similar analyses of accident inquiries, see W. G. Carson, "Occupational Health and Safety: A Political Economy Perspective" (1989), 2 Labor & Industry 301, esp. at 310-15, and Kit Carson and Cathy Henenberg, "The Political Economy of Legislative Change: Making Sense of Victoria's New Occupational Health and Safety Legislation" (1988), 6 Law in Context 2, esp. at 3-8. A recent Canadian example of this approach to the investigation of occupational health and safety disasters was the Royal

Commission on the Ocean Ranger Marine Disaster. For a critique, see W. G. Carson, "Ocean Ranger: Still More Questions to1995 CanLIIDocs 20 Corne (1984), 7:4 At the Center 15. ironically, these academic critiques are substantiated by an explosion in nearby Cape Breton on Feb. 24,1979. Twelve coal miners were killed at the federally operated mine. The ensuing investigation and report recommended changes in safety practices and investigations to prevent the recurrence of conditions which led to the explosions. These recommendations were accepted. The conditions which were sought to be prevented bear a striking resemblance to the ones which prevailed at Westray only 13 years later and only a few miles away. 6. The literature on staple-led growth is extensive. For an overview, see Janine Brodie, The Political Economy of Canadian Regionalism (Toronto: Harcourt Brace Jovanovich, 1990). 7. Brian langille, The Michelin Amendment in Context" (1981), 6 Dalhousie L.J. 523. 8. On the history of mining in Pictou County generally, see James M. Cameron, The Pictonian Colliers, op. cit. n.l. 9. Ash is an impurity which may have to be removed, increasing the cost of coal production. 10. George E. Wimpey of Canada Ltd. explored the option of open pit mining in 1979 and the Nova Corporation conducted tests between 1979 and 1987 to determine whether methane extraction was commercially viable. See Placer Development Limited, Pictou Project Feasibility Study, Vol. 1, Geology (July 1987), Table 1.2. (PPFS); (released by federal government, available on request). 11.PPFS, Vol. 2, Mining, 2. One parameter is that there should be isolation of units to permit sealing off of worked-out areas to minimize the risk of spontaneous combustion. 12. Id., 43-6. 13. This approach is widespread. A study of American mine engineers found that "the mining engineer was compelled to subordinate whatever technical considerations might create conflicts to more comprehensive and commanding economic considerations ... But it would be wrong to presume that many mining engineers found this to be a particularly stressful situation, for in the past, as at present, they largely accepted the industry on its own terms;" Arthur L Donovan, "Health and Safety in Underground Coal Mining, 1900-1%9: Professional Conduct in a Peripheral Industry" in Ronald Bayer ed., The Health and Safety of Workers il Case Studies in the Politics of Professional Responsibility (New York Oxford U.P., 1988) at 100. Also see William Graebner, "'Private Power, Private Knowledge, and Public Health: Science, Engineering, and Lead Poisoning, 1900- 1970," ibid. who concludes, at 26, "engineers, no less than owners and managers, were profit - and production conscious." 14.PPFS, Vol 1, Mining 6. This kind of 'neutral' expertise serves players and governments very well when making plans and, even nome so, when confronted with disaster. For instance, when Westray mine manager Gerald Phillips was asked about the risk of methane explosions prior to the opening of the mine, he said that the history of deaths in the Pictou coal fields had "more to do with the old mining methods" and that the mine would use "modem monitoring systems ... [soi you can detect a problem [methane sas' before it cornes a real problem." Chronicle-Herald, 9 May 1989, 2. As for the way in which this kind of faith in expertise was used after the explosion, see infra. 15. Id. 129. One of the techniques they expected to be satisfactory was roof and pillar mining, something which would necessitate skilled and experienced miners who could exercise a good deal of on-the-spot judgment. Typical of technology enthusiasts, they assumed away the problem of finding the right workers and ignored any pressures which might affect workers' judgment calls. 16. Later, Westray, in the business plan prepared by it for the purposes of obtaining financing for the mine, asserted that Suncor and, then, Placer did not proceed with the development of the mine because each had decided to concentrate their activities in other resource sectors (oil and precious metals respectively). See Loan Insurance Agreement, Schedule "B," 3, (released by the federal government; available on request). There is no independent confirmation of titis. 17. Kilborn Limited, Technical and Cost Review of the Pictou County Coal Project Nova Scotia, Volume I, 3-5; (available on request). 18. Id. at 3-18-3-19. 19.CANMET, Westray Coal Incorporated Pictou County Coal Project: Technical Review (n.d.), 1; (available on request). 20. Id., 3. 21. Id., 5. 22. Id., 8.

NEW SOLUTIONS Summer 1993 37 23.Coal Mines Regulation Act, R.S.N.S. 1989, c. 73, s. 104(1)(b). 24.The former chair of Devco, Ms. MacNeil, has been quoted as saying that Devco's opposition ''was around economics, not safety We would all like to think today that we were all preaching safety. Safety was a factor, it was mentioned (only) Canadian Press, 13 May 1992. Canadian Press entries will hereinafter be cited as CP. These righteous statements must have had a macabre ring to insiders given Devco's own disaster in 1979; see Ref. 5. 25. Chronide-Herald, 9 May 1989, 35. The refusing workers were disciplined; see Curragh Resources a. U.S.W.A., local 1051 (1990), Can. Occ. H&S Cases 81. 26.dicte -Herald (Halifax), 18 August 1989,1-2. 27. For Nova Scotia, see Environment Assessment Act, S.N.S. 1988, c. 11. The federal Environmental Assessment Review Procese (EARP) was created by Cabinet directives. 28. For instance, see Curragh Resources Inc., 1990 Annual Report, where it is stated, "For the mining industry, protection of th( environment is a priority ... At Curragh, we are always searching for new technologies to help us minimize impact on1995 CanLIIDocs 20 th( ecology." (no page number). 29. PPFS,Vo1 4, 8. 30.CANMET's reviewer described the arrangement with Nova Scotia Power Corporation as "particularly attractive," p. 9. 31.CP, 8 June, 1992. 32. Many of the dealings are shrouded in secrecy. The Nova Scotia Power Corporation, with the support of the government, refused to disclose the details of its contract with Westray to the Public Accounts Committee of the legislature; CP, 3 & 31 May, 1989. Th( details of the government's "take or pay" deal with Westray are the subject of a freedom of information action brought in cours by Ma. Boudreau, a member of the Liberal opposition in the Nova Scotia legislature. Curragh Resources Inc. has joined th( government in fighting disclosure; CP, 5 November, 1991, 17 February 1992. 33.CP, 2 September, 1988. 34.CP, 11 Apnl, 1989. The failure to reach an agreement with the federal government subsequently caused construction of the min( to be halted in late July. h did not resume until January 1990; CP, 31 August, 1989, 4 January, 1990. 35. CP, 14 December, 1990. The links between Eric Barker, the owner of Satellite Equipment, and Don Cameron and the fact that th( contract with Westray was awarded without tender became the subject of an expose on the Canadian Broadcasting Corporation'e national investigative news show, The Fifth Estate, aired on December 11,1990 Clifford Frame, in defending the contra« wae quoted as saying, "Td give a contract to the devil if he would do the job cheaper than somebody else." CP, 11 December, 1990. 36.CP, 19 May, 1992. 37. If anything, Curragh did even better there. In addition to financial guarantees, it obtained huge environmental concessions, subsidized power and transport and wage and work-practise concessions from the workers; see Bruce A. Lowie, 'Northern Resource Decision-Makers: A Case Study of the Faro Mine, Yukon Territory" in Peter Adamo and Peter G. Johnson, eds., Student Research in Canada's North: Proceedings of the National Students' Conference, Nov. 1986 (Ottowa: Assoc. of Can. Universities foi Northern Studies, 1988). 38.Stevie Caneton, Globe and Mail, June 8,1992, A4. 39.As quoted in CP, May 11, 1992. The saine language was used in the CANMET review, supra. 40. Earlier that month, thousands of fish were killed when Satellite Construction discharged a chlorine-based solution it had used tc flush out water pipes at the Westray mine into a nearby river. The work had been approved by Westray. In contrast to the way which violations of health and safety laws were handled, Satellite was charged and convicted of offences under the Nova Scott Water Act and Environmental Protection Act; CP, June 4, 7, 12, 1991, CP, April 2,1992. 41.CP, May 13,1992. 42.CP, 3 July, 1991. 43. Memorandum from Claude White, Director, Mine Safety to Executive Director, Ministry of Labor, 21 Oct. 1991, (available request). 44.CP, 28 May 1992. 45.CP, 23 May, 1992. 46.Kevin Cox, Globe and Mail, 30 July, 1992; Coal Mines Regulation Act, op cit. n. 23, ss. 72 & 85. 47.Kevin Cox, op. cit. n. 46. 48.Coal Mines Regulation Act., op cit. n. 23, s. 70(5). 49.CP, May 11,1992. 50.CP, May 12,1992. 51.CP, May, 25 1992. 52.CP, May 23, 1992. 53.CP, May 18, 1992. 54.CP, May 11, 1992. 55.Kevin Cox, Globe and Mail, 30 July, 1992.

38 Summer 1993 NEW SOLUTIONS 6. In Canada, the constitutional boundary between federal and provmaal junschction is drawn on the basis of titis distinction: true crime falls within federal jurisdiction, regulatory offences are within the provincial domain. 7. For a sampling of the literature which explores the historical development of the ideology and practrice of occupational health and safety regulation from this perspective, see W.G. Carson, "The Conventionalization of Early Factory Crime" (1979), 7 International Journal of the Sociology of Law 37 (England); E. Tucker, Administering Danger in the Workplace: The Law and Politics of Occupatib nd Health and Safety Regulation in Ontario, 1850-1914 (Toronto: University of Toronto Press, 1990) (Ontario); and Neil Cunningham, Safeguarding the Worker (Sydney: law Book Co., 1984), (Australia). 8. The views of these influential reformers were expressed in reports of various government inquiries in comparable jurisdictions. For example, Safety and Health and Work, U.K Cmnd. 5034 (Rubens Report), 1972; Ontario, Report of the Royal Commission on the Heatth and Safety of Workers in Mines (Attorney General of Ontario, 1976) (Ham Report); Report of the Joint Federal-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario, Towards Safe Production (1981) (Burkett Report) and Report of the Commission of Inquiry into Occupational Health and Safety,1981 (N.S.W., Australia) (Williams Report). 1995 CanLIIDocs 20 8. For critical appraisals of the reforms, see Robert Sass, "A Critique Canadian Public Policy in Workplace Health and Safety: New Solutions (Fall, 1991), 39 and 'The Implications of Work Organization for Occupational Health Policy: The Case for Canada" (1989), 19 Int'l J. of Health Services, 163; Vivienne Walters & Ted Haines, "Workers' Use and Knowledge of the 'Internai Responstinlity System' Limits to Participation in Occupational Health and Safety" (1988), 14 Can Pub. Pa., 411 and Eric Tucker, "Worker Participation in Health and Safety Regulation: Lessons from Sweden: (1992), 37 Studies in Political Economy 95. For a more positive evaluation, see Katherine E. Swinton, "Enforcement of Occupational Health and Safety Legislation: The Role of the Internai Responsibility System" in Kenneth Swan and Katherine E. Swinton eds., Studies in Labor Law (Toronto: Butterworths, 1983), 143. ita. This is not to say that such a scheme could not be administered more vigorously. This happens when labor-friendly political parties can generate this kind of pressure, as occurred in Saskatchewan from 1974 to 1982 when, under NDP government, Bob Sass served as Director of the Occupational Health and Safety branch of the Department of Labor and introduced many progressive reforms, and in Ontario when the New Democratic Party was able to influence a minority Liberal Party government. But the underlying assumptions remain the same and the more usual slack enforcement is likely to return as soon as the pressure is reduced. This does not require formai changes in the regulatory mechanism. The example of Saskatchewan in the period following the defeat of the NDP is instructive. See Robert Sass, 'The Tory Assault on Labor in Saskatchewan" (1987), 7 Windsor YrW of Acc to Just. 133, esp. at 143-7. 51.See Andrew Hopkins & Nina Parnell, "Why Coal Mine Safety Regulations in Australia Are Not Enforced," (1984), 12 International Journal of the Sociology of Law 179-94; Andrew Hopkins, "Crime Without Punishment the Appin Mine Disaster," in Peter Grabowsky and Adam Sutton, eds., Stains on a White Collar (Sydney: Hutchinson Australia, 1989), 160 and Daniel J. Curran, "Symbolic Solutions for Deadly Dilemmas: An Analysis of Federal Coal Mine Health and Safety Legislation" (1984) 14 Int'l J. of Health Services 5. 52.S.N.S. 1881, e5, ss. 1,2,& 8; c. 21; and S.N.S. 1891, c. 9, ss. 12 k 14. On the background to these legislative changes, see Donald Macleod, "Colliers, Colliery Safety and Workplace Control: The Nova Scotia Experience, 1873 to 1910" (1983), C.H.A. Historical Papas 226 and Ian McKay, 'The Provincial Workmen's Association: A Brief Survey of Several Problems of Interpretation" in Cherwinski & Gregory S. Kealey, eds., Lectures in Canadian Labor and Working Class History (St. John's: CCLH & NHP, 1985),127--34. 53.RS.N.S. 1989, c.73, ss. 142 & 146. 54.S.N.S. 1985, c.3, s.49 and S.RE.L 1985, c.36. 55.The Itighest fine, $500,000, is set in Ontario. Alberta is next at $150,000. Manitoba is doser to Nova Scotia with a maximum fine of $15,000. 66. Compiled from Nova Scotia, Department of Labor, Annual Reports, 1985-86 to 1989-90. In the 1988-89 report, only the total amount of fines levied was reported, ($8,700 from four convictions) making it impossible to ascertain the highest fine. In another tabulation of prosecution data, a total of 97 charges were laid between the fiscal years 1987-88 and 1991-92, resulting in 42 convictions and fines totaling $69,750. (Letter from Jim LeBlanc, Director, Occupational Health/Safety Training, Nova Scotia Department of Tabor, to Eric Tucker, 19 August, 1992). The discrepancy between the number of companies charged and the number of charges may remit from the fact that any one company may be charged with a number of offences at the same time. 67.Nova Scotia, Assembly Debates, 10 july,1991. 68. These speculations have been con firmed by a report commissioned by the Ministry of Labor of Nova Scotia from the independent firm of Coopers and Lybrand. It found that the responsible department was poorly organized and managed and, consequently, routinely failed to follow up on safety orders at work sites. (Toronto Star, 30 Apri11993, Al2). 69.Financial Tunes of Canada, 15 April, 1991, 20. 70.Allan Robinson, "Won't Gamble Again, Curragh Head Says: Globe and Mail, 6 May 1992, B6. 71.CP, 5 September, 29 November, 1991. 72.CP, 30 Cktuber, 1991.

NEW SOLUTIONS Summer 1993 39