Transport Committee on Oct. 17th, 2006

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

I want to thank each one of the participants for attending and providing us with the input today.

I want to remind everyone at this table that our government has consulted extensively on this issue. In fact Mr. Jean, the parliamentary secretary, was in my area this past summer going to many of these municipalities checking out transportation difficulties and the rail problems we're facing. He's also been in Alberta and Montreal, I believe.

My experience is in the lower mainland. One thing we shouldn't forget is the fact that Mr. Julian's riding, which includes New Westminster, and also Ms. Fisher's community are both part of the Pacific Gateway strategy. Those of you who followed the Pacific Gateway announcement this past week know that traffic through this area is only going to get busier. Hopefully the transportation of goods and services through that corridor is going to make the whole area and Canada more prosperous. But it's also going to impose much tougher conditions on those trying to transport goods through the Pacific Gateway.

First, I would like to make it very clear that while our railways contribute significantly to the Canadian economy, they also have to earn a social licence, as does industry as a whole. That doesn't only affect transportation; it affects many other areas, such as the environment.

One of the concerns I had in listening to the participants, specifically to Mr. Allen and Ms. Fisher, was their reference to the fact that the consultations, which took place with the various railways, ended up in failure. Again that's where the whole issue of social licence comes up.

Could the two of you expand a bit more on the process that you attempted to go through in trying to address these noise problems directly with the railways? What was it that led to the failure of those consultations?

[Brian Allen]

I tried contacting—as did my father and many other residents—the public relations department, the manger of rail yard operations, and even the president of CN, for example. They don't even want to sit down and discuss it. I can't arrange a time to talk to them.

If there was legislation in place where we had to try to attempt mediation, sure, I could do that. I've waited ten years; I can wait another year. But the problem is that they don't see it as their problem. They refuse to try to implement any kind of operational standard that would take into account the residences surrounding their rail yards. They refuse to take any action to change their logistics from working at night to working during the day, when it would be less of a bother for people, because they would be at work or they would accept the fact that they live in a big city and noise goes on during the day. They just refuse to discuss it.

This is why we're at the end of our rope. This is why I put all the work into putting together these reports and making suggested modifications to the amendments. If they were willing to sit down and discuss things like reasonable corporate citizens, we wouldn't be here.

The use of the land surrounding the rail yards has changed over time. It's no different from constructing an elementary school and changing the speed limit from 50 kilometres down to 25, for the protection of the kids. The use of the land has changed; it's been urbanized.

The railways should respond in kind, but they don't even want to discuss it.

[Ed Fast, Conservative, Abbotsford, BC]

Ms. Fisher.

[Joanne Fisher]

My experience is pretty much the same as Mr. Allen's. This community applied for the CTA to intervene in 2000. The Canadian Transportation Agency agreed that there is a significant problem here. Unfortunately, our bid to resolve this came at the tail end of their jurisdiction. After their jurisdiction was removed, we simply experienced an escalation of the initial problem. When we contacted the Canadian Transportation Agency at that point, it was suggested that we apply for mediation. It was made very clear that CN's involvement was at their own discretion. CN rejected our application for mediation. At that point, without having very many other resources to turn to, we turned to the mayor of Richmond, Mayor Malcolm Brodie, who came here; along with Suzanne Bycraft, who is the head of emergency services here in Richmond; as well as the local health authority, Mr. Art Hamade, who is the assistant superintendent for.... He retired last year, but he had been very active in this regard since 1992.

They all approached CN. Mayor Malcolm Brodie wrote a very detailed letter to CN, asking for help in some form of resolution--I believe his letter was ignored for over half a year--and got back a response saying that basically nothing had changed. And that's where the matter stands at this particular point in time. The mayor has done everything he can do to help us. The health department has done everything it can do to help us. Emergency services has been involved. There is no other place to turn to at this particular point in time.

[Brian Allen]

I'd like to add one other item, which is that if the rail companies were so willing to work at mediation and at resolving noise complaints, they never would have challenged the authority of the Canadian Transportation Agency in the first place. The whole reason we're here today is that the CTA no longer has any authority. It's been challenged in the courts by the rail companies, and the Supreme Court has said that's right and that it's not in their charter so they can't regulate it.

[The Chair, Conservative, Merv Tweed]

Mr. McGuinty, you have five minutes.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you very much, Mr. Chairman.

Mr. Chairman, I'm going to say, I guess from the beginning, that this is a new issue to me. I've not been exposed to the railway noise issue before. But I have to tell you the gap that is between this bill and the concerns and interests of the people who've testified here today is so large that you could drive a train through it.

I don't know what the government has done in terms of consulting with locally affected communities, because I see here changes that are projected in the Canada Transportation Act, for example, which I don't have any confidence are going to address these issues at all. I see a potential crash course collision with litigation. I don't know how the Canada Transportation Act is going to deal with the question of making public guidelines, in consultation with interested parties, to explain the elements it will take into consideration when deciding noise complaints. Common-law history is paved with tests of reasonableness, which lead to more and more litigation.

I read excellently prepared briefs, by the way. Congratulations to the folks who have given us written briefs. These are the best briefs I've received since sitting on this committee, because they actually speak to the specificity of the bill and tell us exactly what you'd like to see in terms of changes. So congratulations, Monsieur Jobin, and to the gentleman who is on the phone line, Mr. Allen, thank you.

I'm going to toss this out to all the witnesses and say that you've raised some incredibly important points here about municipal governments being engaged; about sanctions and how they might be implemented; about whether or not this is actually going to lead to less litigation or to more litigation; and about the question of whether or not we ought to have decibel tests or non-decibel tests applied here in terms of the noise levels.

Basically, could I conclude from this, as a mere mortal MP, that we have to go back to the drawing board and re-examine this? I see a gaping hole so large between the elements of this bill and the concerns of you as citizens on the ground, from across the country, that I'm now becoming deeply concerned.

[Brian Allen]

Could we ask you guys to have a time deadline to respond and put together a new bill?

[David McGuinty, Liberal, Ottawa South, ON]

I'm going to ask again how many of you were actually consulted by Transport Canada in devising this draft bill, because I don't see any of the interests, or very few of your interests, reflected in the text, unless I don't read English or French.

[Christian Jobin]

Since I have worked on bills C-26 and C-44, since CN went all the way to the Supreme Court to challenge the ruling of the Canadian Transportation Agency in 1999, and since I was involved in mediation which, after 18 months, bore no fruit, I can tell you that there still is not a level-playing field between citizens and the railway companies. The companies just don't want to make the appropriate changes. That is why we want this bill to be amended. I'm not saying it is specifically to protect citizens against the companies, but rather to protect them against the abuse of power which those companies exercise. I think that today they are not acting as good citizens and that is unfortunate.

Everyone knows that CN helped develop Canada. When the railway was built, CN contributed to the growth of Canada's major cities. We are in favour of the development of the railway sector, but we want there to be a harmonious relationship between citizens and this sector, as is the case in some European countries. That is why we are asking for wording referring to the health of people to be included in the bill, along with quantitative standards referring to the allowable noise level during the day and at night.

We agree with Mr. Ménard that the word “unreasonable” is too weak. This would allow the railway companies to claim, in the name of financial or operational criteria, that they cannot correct the situation. These standards exist in Europe. As for a national rail-noise-reduction policy, we would like it to be permanent and that it allow for remedial measures over time.

CN, as well as Canada, have grown over time, but the two events did not happen in a harmonious manner. The parties did not agree, and that's why we are here today. We have to deal with the fact that railways generate noise, but ignore municipal and provincial regulations.

If a citizen made the type of noise during one night which CN generates throughout the year, he or she would be immediately thrown in jail. What we want is to level the playing field. The changes we are asking for may seem radical, but for a long time, since 1998, we are in the same boat as the citizens. And that is why we are making this request.

[David McGuinty, Liberal, Ottawa South, ON]

Allow me to ask my question in a different way. Based on what I have heard today and what I see in the bill, I would ask the following question, which is simple: what specific changes is the government putting forward? Is it in fact offering the status quo?

[Christian Jobin]

Based on what we can tell, if bill C-11 is adopted, the Canadian Transportation Agency will recoup the power to issue orders which it lost in 1999 because of CN's litigation before the Federal Court. That is what would change.

As well, we find the word “unreasonable”, which is a qualitative term that will allow, unless I'm mistaken, arbitrators to determine whether or not a noise level is unreasonable or not.

[David McGuinty, Liberal, Ottawa South, ON]

The issue is really how the CTA will exercise the power it will receive.

[Christian Jobin]

A power which was lost in 1999 because of CN's challenge before the Ontario Federal Court. It is significant that the CT would regain this power, but, if we are to amend the act, we would like the bill to go much farther in protecting citizens. As I was explaining earlier, we must level the playing field.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you very much, Mr. Jobin.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Thank you very much to all the witnesses for coming today or for attending by way of teleconference.

First of all, I want to clarify that my understanding is that section 95 of the act does allow the CTA, with authority, to issue orders against the railways, and these are mandatory orders of law. I do think there's some incorrect information out there as far as the authority of the CTA, and I'd like you to comment on that.

I'm not surprised that Mr. McGuinty said that no consultations have taken place, because most of the consultations, obviously, even for this bill, were from the previous Liberal government under Bill C-44. Fortunately, we do have a minister who sent some of us out on the ground to see what was going on with rail and transportation issues all over the country.

I'm also curious about whether any of the five witnesses today have consulted with FCM, the Federation of Canadian Municipalities, in relation to their railway association consultation on voluntary measures. I would like to hear from the witnesses on that.

[The Chair, Conservative, Merv Tweed]

Yes, Mr. Jobin.

[Christian Jobin]

I know full well that the Union des municipalités du Québec tabled a brief on Bill C-26 and that it said the same thing we are saying today. The brief asks that the CTA regain the power to issue orders. Bill C-26 referred to making “the less amount of noise possible”. For us, this wording is much stronger than the word “unreasonable”. We would like to re-emphasize the fact that quantitative rules, in terms of decibels, should be included to protect people's quality of life.

The Canadian Federation of Municipalities has also spoken on the issue. It would like the Canadian government to amend the Canada Transportation Act so that the CTA regains the power to issue orders. Indeed, negotiations held in Canada within the framework of a mediation process failed because CN and CP withdrew.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

What led to this particular bill is the constitutionality that wasn't available before as a result of court challenges. This is why we have the act now. And we do have the authority, as CTA does, to do so.

I just want to make sure that we're not missing anything here. This really is my last question, Mr. Chair.

Mr. Dalpé actually referred to environmental standards. I'm curious if there are any other effects that anyone sees from the shunting and the rail, besides noise, vibration, and smoke. Are there any other environmental concerns that any of the witnesses have?

[Robert Dalpé]

The two most obvious environmental impacts are noise and smoke. It would be important for the smoke to be brought under control and that we understand how it affects people. In our case, the house is located about 50 meters away. We would like there to be an environmental assessment on the effect of smoke. We know that along highways, houses and cars become damaged more easily. The same thing holds true when you live near a shunting yard.

[Christian Jobin]

The Chaudière-Appalaches Regional Health and Social Services Board conducted a study on the Charny yard and noise zones at night. The noise is so intense that people cannot sleep. They wake up in the middle of the night. People have reported high stress levels. Amongst other things, there are reports of children who are not doing as well in school and senior whose stress levels have gone up, and who even have developed more serious illnesses due to stress. Some of my friends who live near the yard sleep in their basements at night and have to use ear plugs.

Bill C-11 will give the transportation agency the power to issue orders, but is the word “unreasonable ” strong enough to address all the situations I have just described? CN, CP and all the other railway companies will repeat what they did in 1999 when they took their case before the Federal Court in Ontario to challenge the very severe ruling the CTA had made against CN. That is what I fear.

[Paul Gantous]

Similar to what Monsieur Jobin said, what concerns us about the wording of the law is proposed paragraph 95.1(b), where it refers to having to take into account the operational requirements of the railway company. That just leaves it wide open.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Allen or Ms. Fisher.

[Joanne Fisher]

Yes, I have a specific comment I'd like to make about the observations here at Lulu Island.

In March of this year, we experienced with CN Rail an increase in the total amount of locomotives parked in this yard. CN has been approached at various intervals about extending their shop track. They've never done that--to the best of my knowledge, at least. Currently, there are more locomotives in this yard than shop track. The reason why that's at issue is that there's not sufficient spill trays to accommodate this many locomotives and there's a small drainage ditch directly next to the shop track that directly feeds into the north arm of the Fraser River. I view this as a very serious environmental issue that has never been adequately addressed.

With respect to the secondary issue that ties into the fumes, I'd simply like to use the example of my neighbour, Lynda Parsons, who's directly adjacent to my house. She asked me to come over recently and take a look at something she noticed. I stood in front of her house, and the entire roof of her house is permeated with black stains that she believes are diesel exhaust residue. Her home is actually stained at this point because of the amount of time that locomotives spend idling in close proximity to her home.

So there are significant environmental issues tied with this whole bill that I think need to be addressed as well.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Allen, do you have anything to add to that?