Fisheries officials violated labour code by not providing 'protective headgear' to whale rescuer who died

The Department of Fisheries and Oceans failed to provide whale rescuer Joe Howlett with proper "protective headgear" on the day he was struck and killed by a North Atlantic right whale, according to a previously secret Canada Labour Code investigation report into Howlett's death.

The report criticizes the federal government for not having "an effective national policy on whale rescue," an issue that members of Howlett's Campobello Whale Rescue Team highlighted after the death of their friend.

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"DFO controls who can approach whales in Canadian waters by the exclusive jurisdiction in the permits and licences that they issue," the report says.

"They have a duty of care to their employees, the NGO volunteers, and to the whales that are entangled in fishing gear that depend on these persons."

Howlett was aboard a DFO vessel, trying to rescue entangled North Atlantic right whale No. 4123, when he was killed on July 10, 2017.

Just after Howlett freed the whale from the ropes that entangled it, the whale flipped its tail and struck him. 

It's not clear whether protective headgear would have saved Howlett that day. Details surrounding his injuries were redacted from the investigation report.

But Philip Hamilton, a research scientist at the New England Aquarium who saw the whale strike Howlett, previously described Howlett's injuries as catastrophic.

That summer had been deadly for North Atlantic right whales, which have been designated by the federal government as a species at risk. By the end of the year, 12 right whales were found dead in Canadian waters.

Since then, the government has added restrictions on fishing and ship activity, aimed at protecting the disappearing species.

DFO violated Labour Code

Even though Howlett was a volunteer whale rescuer, a Canada Labour Code investigation was launched because the accident happened onboard a DFO vessel, which was considered a federal worksite.

The investigation was completed in December, but the federal government refused to provide a copy of the findings, saying CBC News would have to file an access to information request to Employment and Social Development Canada.

It took five months for that department to respond to the request, providing a copy of the report with several sections blacked out.

The investigation found DFO failed to comply with two sections of the Canada Labour Code, according to the report.

That includes failing to make sure each person granted access to a workplace — in this case, the DFO vessel — is provided with "prescribed safety materials, equipment, devices and clothing."

'There will always be risks'

To comply with the labour code, DFO must complete a "risk analysis" that will spell out the risk level for rescuers based on the species that is entangled and the type of fishing gear the rescuer must cut through.

The department has a "safe work procedure" for marine animal rescues, the report says, but the six-page "general document" covers everything from large whales to small sea turtles.

"A six-page document may not cover the complexity of all of these activities and may be inadequate in describing the disentangling operation and specific issues with different large marine mammals," the report says.

It calls for more research on how to improve work procedures and protective equipment for disentanglers.

Even then, the report says, "there will be always be risks working in such close proximity to large whales."

Feds rely on East Coast volunteers

The report also calls for a national program to manage disentanglement.

On the West Coast, DFO employees disentangle whales. But on the East Coast, DFO "is distant from the process," leaving the task to unpaid volunteers working for NGOs, like Howlett.

DFO signed a form saying it would comply with all the recommendations stemming from the investigation, with a deadline of Jan. 12 of this year.

On the form, the department vows it will "investigate the causes that contributed to the death of Mr. Joe Howlett," but the DFO's investigation hasn't been made public, either.

No one from DFO was available for an interview on Tuesday. Transport Canada, which conducted the investigation, declined an interview request.

In an emailed statement, a DFO spokesperson said the department amended its whale disentanglement protocol and acquired "additional safety equipment" for fishery officers who support whale disentanglements.​ 

Under the new protocol, the department says, only designated experts with "the highest level of expertise" are allowed to disentangle large whales, including right whales.

Around the same time, the federal government lifted a ban on whale disentanglement that had been in place since Howlett's death. The Campobello Whale Rescue Team freed an entangled whale in July, its first since his death.

Campobello team uses same gear

The federal government also pledged an additional $1 million per year to marine mammal response groups, including the Campobello Whale Rescue Team. 

In the past, the team spent nearly all its federal funding on insurance, doing much of its work on two aging boats on loan from the federal government. 

Campobello team member Jerry Conway said the organization wasn't consulted during the investigation, nor has the federal government provided the team with a copy of the investigation's findings.

The team has not changed any of its whale rescue protocols or gear, Conway said.

"We're using the existing equipment that we've had since 2002," said Conway, a former employee with DFO.