Patronage complicates inquiry work for Justice Wells
The unsuccessful appointment of Elizabeth Matthews to the role of Vice Chair, of the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB), is convoluted indeed.
There’s been no shortage of news coverage and commentary on this debacle – including four columns in Saturday’s Telegram, from Frampton, Wangersky, Wakeham and Simms – but a key piece of this story has yet to be discussed in the light of day.
It’s about an even more cynical appointment, one that seems to mock the independence of Justice Robert Wells and his Offshore Helicopter Safety Inquiry.
Because this story has two facets. It is about safety as much as patronage.
If the outrage over Matthews’s appointment seemed louder and more sustained than other acts of patronage, this is why: the Vice Chair role on the C-NLOPB is very much about safety. You can appoint party hacks to positions on NL Housing, Worker’s Compensation or the Liquor Board, but the crash of Flight 491 has made us intensely aware of the importance of strong safety oversight.
Indeed, I discussed this issue with a local safety manager with almost 20 years experience in the oil and gas industry. This source, who declined to be identified, agreed with the Wells Inquiry recommendation, to remove the safety function from the C-NLOPB and create a separate, independent entity. In the meantime, he is against the appointment of a public relations person to such a critical role.
“I believe the time is long overdue for strong, accountable leadership to be put in place. I personally don’t know if (Matthews’s appointment) was legit but, optically, it sure didn’t pass the smell test for such a senior role. I believe the role should be filled by someone who has had some experience in the offshore and who fully comprehends the rigors of the industry; not someone from an office. I am unsure who will fill it but am personally pleased to see that she has rescinded her nomination.”
As for the bizarre way this story unfolded, that has been well covered elsewhere. The provincial government’s handling of this issue was a contradictory, chaotic comedy of errors. Much discussion revolved around motive: why would government make such a key appointment in December, but not reveal it until March?
Some have even suggested that the timeline for this story is immaterial; that it has nothing to do with – and is a mere distraction from – the larger patronage story.
On that, I disagree. Matthews was officially appointed late in December 21, four weeks before the provincial government set a date for the byelection that would fill the seat vacated by Premier Williams. News of Matthews’s appointment didn’t leak until March 11, after the February byelection was over, and after the Tories had won their seat. If this story had come out before or during the by-election, it would have ignited a political firestorm. The Tories had every motivation to suppress it, and the question of who lied to who is germane indeed.
Some have argued that board members have always been patronage appointments; that the Liberals did the same thing, when they were in power. And fair enough. But that was before the loss of Cougar Flight 491, and before Justice Wells delivered his recommendations. The dominant public opinion during the Matthews controversy was that positions involving public safety should be based on merit and relevant experience, not doled out as political plums.
But if you think the Matthews appointment was blatant patronage, consider the federal nominee for the Vice Chair role, which was revealed at about the same time. David Wells is a former staffer with Harper Conservative Loyola Hearn. He was appointed to the board in June of 2010.
Do you know what’s really tangly about this? David Wells is the son of Justice Robert Wells.
David Wells was first appointed to the board in June of 2010, while Justice Wells was still hearing witness testimony, and contemplating phase one recommendations. That was awkward enough. It became doubly so when the federal government nominated David Wells to Vice Chair.
Justice Wells was poised to make a series of recommendations that would have a direct impact on the C-NLOPB. Heck, the inquiry was convened by – and answerable to – the C-NLOPB. Appointing the commissioner’s son to such a senior role, at such a delicate time, smacks of cynicism.
Presumably, this must have created challenges for Justice Wells, who now had firsthand, familial exposure to the patronage problem. However, patronage is mentioned nowhere in his report, which was delivered in January. Shouldn’t a thorough review of the effectiveness of the C-NLOPB include even a passing reference to the political appointees at the board and vice chair level, and a discussion about their qualifications for such important positions?
Justice Wells recommended creation of “a new, independent and stand-alone Safety Regulator” for reasons that are spelled out in his report. Is it possible that he also wanted to create an entity with expert and industry experience, one that wasn't used as a political dumping ground?
I called Justice Wells, and asked him this question directly.
“It was not in my mind,” he said. “The Cullen Report of the Piper Alpha disaster… that’s what led the UK and Norway to separate the safety function from the other regulatory function. And then Australia (did the same) and now the United States is going for it. And… since my report back in January, the report from the Presidential Commission in the United States following the Deepwater Horizon, that came out, and they are recommending exactly the same thing; that safety is so important it should be separate from everything else. And I came to that conclusion during the course of the inquiry.”
I asked if upcoming recommendations, in Phase II of the inquiry, might also have a direct bearing on the C-NLOPB.
“I don’t know. I’m reading… the Transportation Safety Board Report, and comparing it to my own recommendations, where they overlap, and by the middle of April I’ll have these submissions from the players, the participants, the people who have a professional or commercial interest in the offshore, and once I get them, then I will apply my thinking to what they are saying, and vice versa, and then make decisions as to what I may or may not recommend.”
I asked Justice Wells if important board appointments like this should be based on merit – as they are with the board in Nova Scotia – rather than on political connections.
“I really can’t go there,” he said.
I asked if it was perhaps cynical of the federal government to appoint his son to the Vice Chair position, at such a sensitive time.
“Again, I just can’t touch it.”
I stated my view, that political cards were being dealt in a regulatory board that should be free of such interference.
“I really can’t (comment),” Justice Wells said. “It would be going outside of my mandate, and I am still commissioner, you know, and I must stay within my mandate.”
I congratulated Justice Wells on his work to date, and made clear that I was not questioning his integrity or sincerity in any way. ‘But,’ I asked, ‘will it be awkward for you to come forward with recommendations that affect the board?’
“Well, I’ve made the recommendation that they should be separate, in my mind, and that’s there, so what I may recommend arising out of the Transportation Safety Board (report), I wouldn’t like to talk about that in advance. Because I want to see the submissions and consider them, revolve the whole thing in my mind and think about it, before making any move to write it.”
Lawyer, Randell Earle, represents unionized workers at the OHSI, and has been quite vocal about issues pertaining to offshore safety. However, he would not comment on the patronage issue last week, when I sent him an email (on the day Matthews withdrew from the appointment).
“While events have probably rendered this irrelevant, suffice it to say that before commenting on matters that have a strong political element I would have to talk to my clients; my mandate is confined to the OSHSI. I have been called and I have given other media the same answer.”
Earle is a partner with O’Dea Earle Law Offices in St. John’s. One of his partners is Tommy Williams, brother of the former premier.
In the conclusion to his inquiry report, Justice Wells writes:
“Offshore oil jurisdictions and regulators differ in the amount of information about safety which they give to the public. In a free and democratic society such as Canada, as much information as possible on all safety matters should be made public at all times. Exceptions may be required in the cases of security and sensitive proprietary information, but exceptions should be kept to a minimum.”
I agree. We should put it all out there. Because, as Justice Wells writes in his final sentence, “we are beginning to understand that we are all stakeholders now.”
CORRECTION: I received a call from a representative of the Offshore Helicopter Safety Inquiry, pointing out an error from my interview with Justice Wells. It seems to be a misplaced comma, but it does affect the timeline. In the paragraph that begins with “It was not in my mind,” the final two sentences should read as follows:
“And… since my report, back in January the report from the Presidential Commission in the United States following the Deepwater Horizon, that came out, and they are recommending exactly the same thing; that safety is so important it should be separate from everything else. And I came to that conclusion during the course of the inquiry.”
This error is worth noting, as the OHSI report was released in November 2010, not in January 2011. David Wells was nominated to the Vice Chair role in December 2010, after Justice Wells had delivered his Phase I recommendations. I do regret this error.
In light of this, and because the composition of the board of directors was not in the judge’s mandate, I was asked if I could change the ‘Patronage complicates inquiry work for Justice Wells’ headline.
However, David Wells was appointed to the Board in June of 2010. He did have a seat on the board, and was in fact appointed while the inquiry was still doing its work. For this reason, I did not change the headline. I do want to emphasize, again, that I admire the integrity of Justice Wells. It’s just a shame that political appointments should cast a cloud over such important work.