Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 4 - Evidence, November 22, 2011
OTTAWA, Tuesday, November 22, 2011
The Standing Senate Committee on Transport and Communications met this day at 9:31 a.m. to examine Bill S-4, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.
Senator Dennis Dawson (Chairman) in the chair.
The Chair: Honourable senators, I call to order this meeting of the Standing Senate Committee on Transport and Communications.
The Standing Senate Committee on Transport and Communications is continuing its consideration of Bill S-4, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act. Appearing before us today are Cliff MacKay, President and Chief Executive Officer of the Railway Association of Canada; John Orr, Vice-President, Chief Safety and Sustainability Officer of Canadian National Railway; and Glen Wilson, Vice-President, Safety, Environment and Regulatory Affairs from Canadian Pacific.
Welcome. Thank you for having taken the time to discuss this important bill on railway safety in Canada with us.
We will begin with remarks and move on to questions from members of the committee.
Mr. MacKay, you have the floor.
Cliff MacKay, President and Chief Executive Officer, Railway Association of Canada: Before I start, let me ask for your indulgence. I have some problems with my legs so I have not been getting up to say hello to the senators as they came in. I hope you can appreciate that. Thank you.
Mr. Chair and honourable members, I am pleased to present the railway industry's views on Bill S-4, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act. The Railway Association of Canada represents more than 50 freight, commuter, intercity and tourism railways across the country. That represents about 99 per cent of all operating railways in Canada.
We contribute about $12 billion annually to the GDP. We employ roughly 35,000 people directly and another 50,000 indirectly through various suppliers and other means.
The chair introduced my colleagues. I will be making the presentations and I need to make a couple apologies for my colleagues in the short-line community. Unfortunately they were not able to join us today, so I will be trying to answer any questions you may have with regard to short line. Secondly, Mr. Tessier from VIA Rail Canada was due to be here until early this morning. He has contracted a bad flu or cold and decided he had better not be here this morning. I think that is probably everyone's wish at the moment.
The purpose of Bill S-4 is namely to improve rail safety. At this juncture, safety is the highest priority in our industry and always has been. Safety is no accident as railways always strive to have the safest possible system. The industry is impressed by the comprehensive work carried out by the Advisory Panel for the Railway Safety Act Review, which was appointed in December 2006 and did its work during 2007. The leadership of that committee, chaired by the honourable Doug Lewis, was exceptional. The report Stronger Ties: A Shared Commitment to Railway Safety with its 56 recommendations is one of the best I have ever seen. I must tell you, honourable senators, I have been around Ottawa for quite some time. It was a very well done report.
Since that time, the railways have worked closely with Transport Canada, labour unions and other interested stakeholders to develop action plans and recommendations that flow from the report.
At this point, the railway industry supports this legislation in principle.
With that said, let me also say we have some detailed written submissions that I believe could give you more on safety than what is in the current submission. From our point of view, the report and work that has been done to date has been excellent. However, there is more we can do to try and improve safety through some amendments to the existing legislation you have before you. That is what I intend to speak to now.
We believe the Senate of Canada and this committee is in an excellent position to improve this legislation in a way that will have a positive impact on safety in the daily lives of Canadians and their interaction with railway operations. This bill focuses on the oversight capacity of the government. It enhances powers and clarifies the authority and responsibility of the minister with respect to railway operations and matters. In short, it deals with administrative matters relating to rail safety operations. It does very little to improve safety in a real, tangible way that would make a difference to the safety of Canadians on a day-to-day basis. Most of what you see in this act strengthens the powers of the minister or provides specific requirements — for specific employees or authorities in the railway industry — to do a particular kind of job, such as provisions having to do with executive accountabilities.
We believe the act can correct this oversight. We think the drafters would welcome that, in particular the drafters of the railway review act, which also recommended what we are about to recommend to you.
I am pleased to say that railway safety in Canada continued to improve from 2006 to 2010. The improvements were particularly noticeable in the more significant accident categories, such as main-line derailments and crossing accidents. I will speak to crossing accidents in a minute. These results are impressive when one considers they were achieved at a time when rail and passenger traffic was growing rapidly. Exposure to potential sources of accidents resulting from urban sprawl and heavier traffic on roads was also increasing.
The increased proximity between rail operations and everyday life in communities across Canada is a risk factor that must be addressed to improve rail safety and the safety of Canadians. We believe that Bill S-4 must be strengthened in this particular area.
Proximity is anything that has to do with the operation of a rail line and municipal, industrial or other activities operating in the immediate vicinity of that rail line. If not properly managed, some could be seriously dangerous to individual Canadians as well as the railways themselves.
At the centre of these concerns regarding proximity between the rail operations and municipal developments is the wide variation that exists across Canada and Canadian jurisdictions with respect to land-use planning regulations. Recommendation 34 of the advisory panel for the rail review stated that the Railway Safety Act, the RSA, should be amended to require developers and municipalities to engage in a process of consultation with railway companies prior to any decision respecting land use that may affect railway safety. Regrettably, Bill S-4 is completely silent on this important matter.
Chief among the objectives of the RSA, as stated in section 3(c), is to recognize the responsibility of railway companies to ensure the safety of their operations. We believe the best way to ensure railways can fully assume such responsibilities with respect to new activities on lands and close proximity to the land is to ensure that they are involved in the consultation process that leads to any development activities.
We believe that the most efficient way of improving rail safety in this area is to provide the Governor-in-Council the power to make regulation regarding notification that should be given to railways regarding the establishment of local plans of subdivisions, zoning bylaws or proposed amendments where the land in question is in proximity to rail operations.
In regulation, to be adopted after such power is granted to him, the minister may find inspiration in what is already in existence in Ontario, where a 300-metre distance triggers a notification process. Three hundred metres seems reasonable from a safety point of view.
You should also be aware that similar kinds of provisions are provided in the Aeronautics Act with regard to developments in areas adjacent to airports, and we would think that something similar on the rail side would significantly enhance safety.
Mr. Chair and honourable senators, this simple measure would go a long way to reducing accidents and incidents involving railways and the general public. This would be a tangible improvement that would help save the lives of Canadians.
Another measure recommended by the panel is recommendation 35, which is to limit to the extent practicable — and the word "practicable" is very important — the opening of new level crossings around railways. Bill S-4 is silent on this important matter. Incredibly, the current regulatory process does not take safety into consideration in the decision to open new level crossings.
Under the current legislation, the only criterion that the Canadian Transportation Agency has to take into consideration when authorizing the opening of a crossing is the owner's enjoyment of the land in the case of private crossings. There is nothing to address improved safety. For that reason we ask the committee to consider amending the Canada Transportation Act to authorize the construction of crossings only when there is no other reasonable alternative and the minister confirms that the crossing does not represent a threat to the safety of users of the crossing or to safe railway operations.
We believe that these two provisions with regard to crossings would help us significantly in reducing fatalities at crossings over time. We have managed to reduce the fatalities by over 50 per cent in the last 10 years, but more needs to be done. Up to 50 people die every year at railway crossings. It is too many.
Given the relationship that proximity and crossing issues have between the railways and the public, the railways maintain that Bill S-4 will not result in sufficient improvements in railway safety without the inclusion of provisions we have outlined to address these issues. I hope you will agree with the railway industry on this matter and take necessary steps to improve the act.
In closing, I would say that the one place where Bill S-4 extends beyond the panel recommendation 24 to introduce regulations that would force railways to implement — as a result of a risk management analysis, which we are fully committed to — is remedial action required to maintain — and these are the key words — "the highest level of safety." This is the definition being proposed for safety in the act.
While we agree strongly that there needs to be a good definition in the act for safety, we believe that this particular definition goes too far and is not capable of being enforced. If you read the words literally and in a litigation process, you could easily find yourself in that situation.
Highest level of safety can only be accomplished through one thing: stop the train. That is the way you get the highest level of safety; you simply stop the trains. You cannot stop the trains, for all the reasons that I certainly am not going to take the time of the committee today on, but they are pretty self-evident, having to do with the Canadian economy and a whole series of other factors. We have to have the trains operating, but they have to operate within a safety boundary that is maximized in every conceivable way.
The proposed threshold creates a standard that may well be unattainable from a practical perspective, and this is the issue. Put simply, it may hinder railways' abilities to continue operating, a result that could create grave consequences not only for our members but also for the Canadian economy.
We raised this matter in the context of Bill C-33. Bill S-4 attempts to address it by including a definition of "highest level of safety," a definition that might have been a legitimate approach if a standard did not already exist, and such a standard does exist. It exists in the aircraft industry, in the rest of the rail industry, and internationally in the U.S., Australia and in other places around the world, as well in Canada in the Canada Transportation Act.
We do have a pretty solid standard. One of the things we wonder about in this particular provision is why we are trying to reinvent a wheel here when the wheel seems to be working reasonably well at the moment.
The question of proper level of safety has been debated in the past, particularly during the review of the national transportation policy, section 5 of the CTA. In this instance, the legislation was wisely amended to include the phrase "the highest practicable" level of safety, the word "practicable" being a word that can be made subject to certain standards, practices and ways of doing business through safety management and other systems, which can be put in place through regulatory and other means. The railway views a similar standard for the RSA in that context and would recommend that the word "practicable" be inserted into this act, as well as a clear and enforceable definition of safety for the industry.
There are other more minor points, which we have provided in our extensive brief. I hope the brief will give you and your staff the clear indication that safety is a serious matter to the railways. We take it very seriously. There are many other minor things that could be done, but we wanted to bring to your attention these three key matters. I will stop there and thank the chair and the committee for their indulgence in listening to us today and turn it back to you, Mr. Chair.
The Chair: Thank you, Mr. MacKay.
Senator Boisvenu: First, thank you very much for being here this morning. I have two points of clarification with regard to the documents we received. I would then like to have a discussion with you on the problem of land use. You would like to integrate into the bill the issue of land use and good relations between neighbours.
You talked about improving the accident record. What is the main reason why the number of accidents has come down this year as compared to previous years?
Mr. MacKay: There was a program, part of which still operates today, called Operation Lifesaver, which specifically focuses on trying to make particularly young people more aware of safety around railway operations, both around level crossings but also around issues of trespass, which is also very dangerous, as we saw, unfortunately, not too long ago in Montreal, where we had three young people killed. That kind of tragic event is exactly why we need to find ways to do better. That program is still going today.
Senator Boisvenu: In schools?
Mr. MacKay: It is in schools and also in other places, but mainly focusing on younger people.
In addition, we worked with the government on a five-year program that has now just finished, which enhanced that. We had, for example, bulletin boards and various kinds of things that significantly enhanced the amount of awareness. Those two programs together resulted in a significant reduction in fatalities and injuries at level crossings, less so, unfortunately, for trespass. However, there is still a long way to go. If you look at our statistics in detail, you will still see that there are a significant number of serious injuries and fatalities in these areas.
We just need to do better, frankly, and do everything we can to reduce the number of level crossings and enhance the safety of those that need to be there. Obviously, we need level crossings. We cannot have overheads everywhere; it is outrageously expensive. We need to do it, and we believe there are some things that can be done in this legislation that will help us in that direction. It is does not fix it, but it takes us in the right direction.
Senator Boisvenu: When you talk about problems with trespassing, is that what you are referring to?
Mr. MacKay: Yes.
Senator Boisvenu: What concerns me the most are issues surrounding land use and good relations between neighbours. You said that when a railway company wants to make changes to land use, it must first ask for authorization to do so. But municipalities, for instance, do not have to obtain authorization or consult with the federal government to make changes with regard to land use. For about 15 years, I worked for the Quebec Ministry of the Environment. An ongoing problem was that when a company moved in and worked on a residential project, there were all kinds of problems related to noise and dust in the vicinity, and it was almost an issue of moving the project elsewhere because of objections raised by citizens, who were trying to save their quality of life.
In your case, you work with all three levels of government, that is, the federal, provincial and even municipal governments when it comes to land use. You are saying that the bill should take this issue into account.
How can federal legislation incorporate areas of provincial and municipal jurisdiction?
Mr. MacKay: That is a real issue. Our view is that this is a provision to notify. This is not a provision to force a municipality or a province to do something that it does not want to do within its own jurisdiction. It is very similar to the kinds of things that exist at the moment in the Aeronautics Act where a municipality may want to look at the building of a highrise somewhere in the flight path of an airport. They are required now, under the federal legislation, to provide notification to the local airport and to a number of other stakeholders that they have this application, they are considering it and they seek input as to whether they feel there are any safety provisions in the building of that particular facility. If there are, obviously it is up to the airport or the airlines or whomever to make that information available to the municipal authority so that they have it when they need it to make an appropriate decision on what they should do. It would be a very similar process on the railway side. It is not as if we want to interfere in provincial jurisdiction. Quite frankly, we do not. We work closely with the Federation of Canadian Municipalities and others. The Federation of Canadian Municipalities has expressed this concern to us, and our view has been that we are better off to have one approach, across the country, rather than 10, 12 or 13. We have one province, at the moment, that does have some provisions, and that is Ontario. Quebec is looking at the matter fairly seriously right now; we are encouraging them and other provinces along the same line. Unfortunately, as I am sure you know, when you try to get 9 or 10 provinces all pointed in the same direction, at the same time, it sometimes takes a long time. We are very anxious, obviously, to try to do as much as we can, as quickly as we can, to try to improve the safety situation.
Glen Wilson, Vice-President, Safety, Environment and Regulatory Affairs, Canadian Pacific: If you look at the Railway Safety Act review panel's report, it describes a trip they took from Calgary to Edmonton and an incident with children streaming across the railway. I was with them that day; it was on our network. Throughout the day, through the towns of Airdrie and Innisfail and others along the way, the honourable Mr. Lewis remarked a number of times that these were not wartime housing situations he was seeing, but new developments. Schools are going up on one side and soccer pitches and baseball diamonds on the other, and children are streaming across the tracks in between. We just had an incident west of Montreal with a landslide down where a slope collapsed due to adjacent land use. It was the piling of asphalt on top of a slope that sat above the rail line. We had a $6.5-million derailment that resulted from that land use, as well as injuries to our crew. It was a 35-car derailment, but there were, fortunately, no public safety concerns. That is more fortune than good management. Incidents have been occurring for a number of years. They were recognized by the panel, and they continue to occur. Adjacent land use, as the population grows and everybody gets packed in a little tighter, is that much more of a concern for our operation. We do not want to have to deal with those people in an adversarial way, through noise and vibration complaints. As Mr. MacKay alluded to, we should import some of the logic of the aviation industry and other places where we all accept that you cannot put a highrise at the end of a runway. In our case, we have some railyards where bird control occurs because of the fact that they are right at the ends of runways. We accept that, and we are looking for similar logic to be imported into the railway industry.
Senator Eaton: Would that not be a municipal responsibility when you talk about the land use of the people piling concrete next to the track and causing a derailment?
Mr. MacKay: The answer is yes, but what is not there is the connection. The municipality is off doing its thing, the railway is off doing its thing, and there is no connection.
Senator Eaton: Is that the federal government's responsibility?
Mr. MacKay: No, and we do not think it should be. It is the responsibility of the municipality to notify, and that is why we are talking to provinces. However, in this particular case, we think there is an overriding responsibility for public safety here too, and that is why we are proposing it in this particular act.
Senator Eaton: How many amendments were brought by the standing committee in the Commons? There was another special group that the minister put together, and there were something like 70 amendments brought to this bill.
Mr. MacKay: Yes, 56 from the Lewis group. Then the Standing Committee on Transport and Communications in the House of Commons also produced a report, and it has produced another. I cannot think of one that is not being dealt with, other than the ones we are talking about here.
Senator Eaton: Why do you think they did not deal with the ones you are talking about now?
Mr. MacKay: I can only speculate. With regard to proximity, I think it may have to do with the issue you just raised as to whether this should be left to the provinces or whether the federal government should become involved.
As you know, our view is that public safety should override this. It is certainly not, at least in my view, an intrusive matter to provincial authority in any particular way. We are simply asking for some notification.
Senator Eaton: This is a bad week for me when Toronto is banning balls from schoolyards. We have become so risk- averse.
Mr. MacKay: In this case, you actually kill people.
Senator Eaton: Yes, but you kill people on highways. I am not trying to downplay the horror for your people driving an engine and killing a child or someone in a car. However, it is true that when there are flashing lights and barriers that come down, once or twice a year there is always a car caught between the barriers, and someone is killed.
Mr. MacKay: Can I speak to that? I am going to ask my colleagues to speak to that. If that was the problem, you would see some very happy people sitting at the end of this table. That is not where people get killed. People get killed at level crossings with no lights or anything.
Senator Eaton: I guess I am trying to make the point that, no matter what you do, there will always be somebody who says, "I do not want to take the tunnel; I do not want to go over the overpass. I will just skip across.
Mr. MacKay: You are right. We cannot completely regulate human nature; it is what it is. However, we can do the best job possible within the context of our legislative and operating frameworks to try and minimize that risk. That is what safety management is all about. You try to minimize the risk.
Senator Eaton: Could you speculate for me? Do you think the reason was because the federal government did not want to cross municipal and provincial barriers?
Mr. MacKay: That is my speculation. No minister has said that to me. However, when I look at this and I look at the logic I say to myself, "There must be a logical reason." What reason could there be, other than they would prefer provinces to deal with this rather than the federal government?
Senator Eaton: I will ask one last question. I am sure other people want to continue in this vein. The phrase "highest level of safety" sets off bells in your head.
Mr. MacKay: Yes.
Senator Eaton: To me, it means that the railway does its best to ensure the equipment, lines and people are well trained. It asks you to do your very best. It does not mean to stop the railways.
Mr. Wilson: I would suggest that what you described is the highest practicable level of safety. The issue of the wording in the bill is the risk subjected to interpretation by lawyers and others as to what it means. In the extreme Mr. MacKay described "highest level of safety" could mean "do not operate the train."
Mr. MacKay: At least not in that particular place.
Mr. Wilson: I could look at this room and say it is not constructed to the highest level of safety. You could have double doors and wider walkways, et cetera.
Senator Eaton: I guess we will have to disagree philosophically.
Mr. Wilson: If it means what you say, then our concern is moot.
Mr. MacKay: Our concern is not with the interpretation of that definition among railroaders, regulators, ministers and people who are advised and informed. Our concern is that quite often we find ourselves in litigation that involves judges, lawyers and others who know absolutely nothing about the business. They will pursue a line of logic that would argue that you should not have been operating there because you were not performing the highest level of safety.
Senator Eaton: Then you are not operating.
Mr. MacKay: That is exactly what they would argue.
Senator Eaton: We will have to disagree. I think it is a bit far-fetched.
Mr. MacKay: It may be.
Senator Boisvenu: I would like to finish with the question I asked previously with regard to nuisance and good neighbourly relations.
Are there any cases where a railway company had to move a section of track because of objections from the people in the area? Are there examples in Canada where sections of tracks have had to be moved because the situation was becoming untenable?
John Orr, Vice-President, Chief Safety and Sustainability Officer, Canadian National: The premise of proximity is founded on public safety, the opportunity to make a sound decision and to avoid unintended consequences.
There are specific references relative to our being asked to move infrastructure. We are dealing with one in one of our U.S. properties. More importantly when you look at proximity complaints and issues, there are real ongoing discussions and deliberations. In Vancouver, for example, it has gone through the course of mitigation. There have been acceptable changes and then a new regime of complaint or discussion on safety. We see it in a number of locations. It is a real issue.
You asked the question: How did we shape the last five years as an industry to have improvements? Mr. MacKay gave a good answer, but I would add that the most improvements have been garnered by inclusion of stakeholders, organized labour, local entities, municipalities, regions, provinces and federal stakeholders. It is taking a holistic approach at the intended use against, what the experts would say when they review it, things that could happen, and then assessing the right level of mitigation against those risks.
It is a twofold answer. There are real issues and examples that are tying up our courts. Our communities have to deal with that. As well, there is opportunity to have influenced those in the past. More importantly, there is opportunity to shape as the communities grow. It is localized, where the most commercial and industrial growths are intersecting with population growth, to have those foundational discussions. It is a heavy investment when it comes to the railway. It is there for a long time and it should be part of the landscape of planning.
Senator Boisvenu: Mr. MacKay, you indicated earlier that you had had discussions with, amongst others, the Federation of Municipalities and other large associations. Is there a permanent discussion forum to debate these matters on an ongoing basis, or are discussions only held when problems crop up?
Mr. MacKay: No. We have an MOU with the Federation of Canadian Municipalities. We have had it for a number of years now. Under that MOU we do a number of things, one of which is to try to come up with guidelines and activities — which we can share with our members and they can share with theirs — to try to improve some of the things we have been talking about today. For example, what would be a good set of guidelines for notification? We think the guideline which is currently in force in Ontario, which is 300 metres, is a reasonable guideline. There are other guidelines you have to think about. For example, not everything that takes place within 300 metres of a rail operation is necessarily dangerous. You need to define that a little more clearly.
There are all kinds of things of that nature that we deal with them on. We deal with them on notice and vibration questions to try to work through various ways of doing a better job. They are concerned, just as we are, on safety elements, including both trespass and on level crossings. We have a very good working relationship with them. We do disagree on this one matter. We think the notification process would be more effective if it was done through a piece of federal legislation. They feel we should do it through provincial legislations and work our way across the country as best we can.
Senator Boisvenu: Would the Federation of Canadian Municipalities rather have federal or provincial legislation?
Mr. MacKay: It is provincial. In the case of Ontario, it is done through their municipalities. They have all the legislation requirements in order to put something like this in place within the context of their own municipalities.
Senator Boisvenu: Do the same passenger safety regulations apply to all railway companies?
Mr. MacKay: No, it is quite a complex process. Mr. Wilson and Mr. Orr might wish to add to this. We do a safety analysis of the level crossing, risk analysis to try and determine what the risk is, and what distances and traffic patterns are. As a result of that, the federal safety authority will define what they require with regard to bridges, notifications, signals or nothing.
In many cases, frankly, it is nothing, because it is a private crossing and there is no need for it, even though it could be dangerous. However, it is not dangerous to a large number of people, so it is the risk question.
Senator Boisvenu: Mr. MacKay, there has to be a minimum, such as for signal lights?
Mr. MacKay: Normally, you do not have a number pulled out of the air. What you have is a minimum that is defined by a detailed assessment of the risks associated with that particular piece of property. That could differ from property to property, depending on what you are looking at. I do not know if Mr. Wilson or Mr. Orr wish to comment on that. It has to do with risk analysis and the assessment.
Mr. Wilson: I would add that the starting point, in our view, should be the avoidance of the crossing in the first place, and that you look for reasonable alternatives. The United States has a clear mandate to reduce the number of crossings. They recognize that public safety is enhanced by not creating, in the first place, the intersection between rail traffic and vehicular public transportation.
We do not have that in Canada. We have two separate regulators, one of which, the CTA, has the jurisdiction to allow and permit access. Safety is not a part of what they look at or consider. That is the starting point of what we are looking for, namely, to have that as the primary and first consideration to look for alternatives. If, in the event of no other alternative, a crossing is required, then you look at the risk mitigation applied to it.
Senator Boisvenu: What would you suggest to improve safety in that regard?
Mr. Orr: With regard to crossings, again, a consultation to understand what is the easiest way to avoid that crossing. Are there other crossings within the area? Are there crossings that can be manifested into a safer environment and streamlined? In the absence of that, then, of course, the crossing opens. We need to have safety as the most compelling issue in creating a crossing, rather than enjoyment of the property as it stands today.
Mr. MacKay: Let me give you an example from VIA Rail Canada, which has been doing a lot of work in this area in the last couple of years. The town is on their line between Ottawa and Montreal. Before they started, they had something like 12 level crossings in the space of this one little town. Of course, VIA, when it is going full out, travels over 120 kilometres an hour, sometimes even up to 140-plus. This is one of the areas where it does this routinely.
For those of you who have ridden on the train back and forth on that route, I am sure you can recall periods of time when it seemed like the guy was leaning on the horn continuously. That is what he is doing. There is level crossing after level crossing, and he is doing what he needs to do with a safety regulatory point of view to advise people in the general vicinity that there is a train coming and it is coming pretty darn fast.
In the last year or two, VIA Rail Canada has managed to close upwards of 30-plus of those crossings. Most of them were private. It was simply a set of negotiations. They sat down and talked with the owner, did a deal, and that was closed. That is the kind of thing that needs to be done when we talk about individual stakeholders and other people being involved. If we can do that in combination with trying to slow down the number of new crossings and this sort of thing, we think we can make real further progress.
Mr. Orr: There is another compelling location in British Columbia where the communities have invested in the sightlines and protections to avoid whistling, and have undertaken that with the support of Transport Canada and the railways. However, because of proximity, the whistles are being blown for other crossings that are within the quarter- mile range of whistling, negating all the investment and risk mitigation the communities have taken.
Mr. MacKay: That is another municipality down the road.
Mr. Orr: There are opportunities to look at an aggressive closure program in the U.S., as Mr. Wilson mentioned. In Canada there is a great willingness to undertake it, and we will continue to work with the agencies in charge of that. At the same time, I think it is important that we look at having a solid reflection on opening crossings and, again, making safety the paramount principle of discussion.
Senator Zimmer: No pun intended on this, but it seems like you are caught in the middle of the tracks and the train is coming. There seem to be many sections in the Canada Transportation Act, Mr. MacKay, that you feel need revising. I understand the importance of having these safety issues addressed right now, but should we not put in more thought before we continue on? Otherwise, a year from now you may say that we have to bring out another bill to address all these other concerns, and again you are caught; do you go now or do you go shortly thereafter?
Mr. MacKay: That is a very good question, senator. The thing that provides the opportunity here, from our point of view, is that there has been so much work done in the last four or five years, starting with the complete review of the safety of the rail system in the country, the Doug Lewis report, leading on to the work that the Transport Committee in the other place has done, leading on to an enormous amount of work done by stakeholders, including ourselves, through a whole series of working groups, everything from how do we do a better job on fatigue management and rule making in the context of the current structure that exists and is administered by the department.
There is a whole range of other things having to do with data and data collection and how we do it and how we can do it better. I could go on for hours on this. An enormous amount of work has been done in the last three or four years by a large number of people across the industry and across government as well.
The legislation is an important piece of that puzzle. It is the piece that brings forward those parts of the recommendations made by the Lewis report that require legislative change. We agree generally with what they are doing, such as the need to identify and to be specific and clear as to who is the accountable executive in railway X, Y or Z, to ensure that you know that there is a clear line of accountability when it comes to safety management systems. Some of those sorts of things are absolutely critical. They are in the bill; we agree with them entirely.
What is not in the bill, unfortunately, are the three pieces that we outlined to you earlier, senator. We think this bill can be made better by putting those three pieces in. We do not believe we will be back in another year or two, because we think all of this huge work that I just described to you puts us in good shape, we think, for rail safety in Canada in the next five to ten years. Obviously, there will be a need to review the act again, but we do not think it will be in the immediate future.
Senator Zimmer: Just a comment. I know you are from Winnipeg. We share the same location. Congratulations that the Bombers are in the Grey Cup.
Senator MacDonald: I would like clarification on some of your proposed amendments. You want the federal government to be more involved when it comes to proximate land use. If it is not federal jurisdiction, how do you expect the federal government and Transport Canada to enforce anything? Do you have a solution? How do you expect to do it?
Mr. MacKay: The same way it is done right now under the Aeronautics Act. Frankly, most municipalities are very responsible and there is no need for enforcement; there just is not.
We would say to the municipality, "We would like you to notify the local rail operator of activities that will take place within the immediate vicinity of their operations that could not only cause a problem for them but also cause a problem for you." However, we just do not run into those kinds of problems. We do not have them in Ontario. I cannot think of one instance in Ontario where we have had to deal with any kind of enforcement.
Senator MacDonald: When you do make the suggestion and discuss it with municipal or provincial authorities, what is their response?
Mr. MacKay: Generally speaking, it is positive. The problem we have is the problem you always have, which is that there is a list of 300 priorities that the Department of Municipal Affairs of the Government of Saskatchewan has, for example. I will just pull that out of the air. They say, "What you want to do is notable and a nice thing to have, but I have all these mayors out here who are already complaining to me about too many regulations and too many of this and too many of that. How about we try to work this in over the next three to five years?" That is the kind of discussion you get into. That is why we think that taking this off the plate is not onerous. We just do not think it will have any serious impact on enforceability or anything of that nature because it simply has not. It has not on the aviation side, and where we have it on the rail side, it has not either.
People are fairly responsible. When someone gives them something, they respond.
Senator MacDonald: Thank you.
The Chair: Mr. MacKay, I want to thank you for your presentation and your frank discussion with the members.
As you know, this is an ongoing process. We will have other witnesses. It will be going into the other place as you said before. I guess we will have another opportunity to discuss some of your remarks of today.
Thank you very much.
(The committee adjourned.)