Bill C-33 (Historical)

Safer Railways Act

An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act

These amendments amend the Railway Safety Act to, among other things,
(a) improve the oversight capacity of the Department of Transport by, for example, requiring railway companies to obtain a safety-based railway operating certificate indicating compliance with regulatory requirements;
(b) strengthen that Department’s enforcement powers by introducing administrative monetary penalties and increasing court-enforced penalties;
(c) enhance the role of safety management systems by including a provision for a railway executive accountable for safety and a non-punitive reporting system for employees of railway companies;
(d) clarify the authority and responsibilities of the Minister of Transport with respect to railway matters; and
(e) expand regulation-making authorities and clarify the process for rule making by railway companies.

Safer Railways Act

[Denis Lebel, Conservative, Minister of Transport]

moved that Bill S-4, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act, be read the second time and referred to a committee.

Mr. Speaker, I am very pleased to present to you today for second reading Bill S-4, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.

I believe this is the first time I have ever had the honour of presenting a bill that is as finely crafted, broadly applauded and widely supported as Bill S-4.

This legislation has been in development for more than three years, with constant consultation and input from all levels of government, industry and labour stakeholders. It has also been commented on by witnesses, dissected clause by clause by standing committees on two separate occasions, and approved unanimously by all parties both times.

Clearly, the debate is over. It is now time to pass this important bill as quickly as possible to ensure the safety of Canadians.

Bill S-4 is clearly a progressive and forward-looking bill, and the amendments it contains will mean better safety for Canadians and Canadian communities, better protection for our fragile environment, and a stronger Canadian rail industry in a stronger national economy.

All of these things are priorities for our government, and I believe that they are priorities for all members in the House.

There is nothing more important than the safety and prosperity of Canadians.

As many members may know, the bill has quite a bit of history. For many years, the safety of Canada's federal railways was regulated under the Railway Act, which originated at the turn of the century when Canada's railway system was rapidly expanding. The Railway Act was designed for an older era. At that time, much of the national rail system was under construction to open up new territories to encourage settlement.

In 1989, the Railway Act was replaced by the Railway Safety Act, which was designed to achieve the objectives of the national transportation policy relating to the safety of railway operations and to address the many changes that had taken place in the rail transportation industry in recent years. The Railway Safety Act gave direct jurisdiction over safety matters to the Minister of Transport, to be administered by Transport Canada where the responsibility for other federally regulated modes of transportation resides.

Following a review of the Railway Safety Act in 1994, the act was amended in 1999 to further improve the legislation and to make the railway system even safer. Those amendments were designed to fully modernize the legislative and regulatory framework of Canada's rail transportation system. They were also designed to make railway companies more responsible for managing their operations safely and to give the general public and interested parties a greater say on issues of railway safety.

These changes were commendable, but there was a problem. A number of high-profile train derailments in 2005 and 2006 across the country—in Alberta, British Columbia, Quebec and in other provinces—resulted in fatalities, serious injuries, significant environmental damage and negative economic impacts for railways and communities.

These tragic accidents caused concern for the public and the government and focused national attention on rail safety. They also provided the impetus, in part, for the Minister of Transport to launch a full review of the Railway Safety Act in 2007. The objective of the review was to identify possible gaps in the act and to make recommendations to further strengthen the regulatory regime.

The seriousness of those derailments also provided the incentive for the Standing Committee on Transport, Infrastructure and Communities to begin its own railway safety study. The Railway Safety Act review was led by an independent panel of experts who commissioned research and held extensive public consultations across the country. Interest in the consultations was high and all key stakeholders participated, including railway companies and associations, labour organizations, national associations, other levels of government, municipalities and the public.

The panel's final report, “Stronger Ties: A Shared Commitment to Railway Safety”, was tabled in the House by the Minister of Transport in March 2008. In the report, the panellists noted that although the Railway Safety Act and its principles are fundamentally sound, more work is needed and a number of legislative improvements are required. The report contained 56 recommendations to improve railway safety in Canada.

The standing committee, which also conducted extensive stakeholder consultations, accepted the panel's recommendations and tabled its own report in the House in May 2008. The committee's report also made 14 recommendations, many of which built on those that came from the Railway Safety Act review.

The authors of both reports identified the main areas that required improvement and recommended increasing Transport Canada's resources in order to increase its ability to monitor compliance and enforce the legislation and take new rail safety initiatives.

Transport Canada agrees with the recommendations made in both reports and has taken steps to implement them through a variety of government-industry-union initiatives and through these proposed legislative amendments to the Railway Safety Act, which are required to address key recommendations and enable many safety initiatives.

In fact, Transport Canada took action to address these concerns almost immediately after receiving them.

In March 2008, following the publication of the report on the review of the Railway Safety Act, we established the Advisory Council on Railway Safety in order to get the process of consultation started again and to consider future directions in railway safety, the development of rules, regulation, policies and other matters of concern. The advisory council is made up of representatives of the main stakeholder groups, including Transport Canada, railway companies such as CN, CP and VIA, short line and commuter rail companies, the Railway Association of Canada, shippers, suppliers, other levels of government, and unions. The council has met three or four times per year since it was established, in order to work collaboratively on the strategic matters of railway safety that were raised in the report.

Additionally, working with the railways and the major unions, Transport Canada has established a steering committee, made up of representatives of Transport Canada, the industry and the unions, to oversee the development of action plans for implementing the recommendations in the report on the Railway Safety Act review and the report on the study conducted by the Standing Committee on Transport, Infrastructure and Communities. The committee has been supported by six technical working groups in addressing ways in which to implement the recommendations of concern not only to the regulatory body, but also to the industry and the unions, and in keeping the ACRS informed of their progress.

These joint technical working groups included teams devoted to the rule making process, safety management systems, information collection and analysis, proximity and operations, environment and new safety technologies. Together, those groups were assigned 24 recommendations by the steering committee. All of them have completed their work. Their recommendations have been, or are being, implemented. In addition to the work of these groups, Transport Canada implemented eight internal recommendations. Industry implemented three recommendations that pertained to the companies. The final 21 recommendations are related to legislative changes which we are discussing today. In short, these amendments to the Railway Safety Act are the final component of a well-orchestrated and well-funded drive to make our railways safer.

In budget 2009, the government affirmed its commitment to a safe, reliable transportation system by earmarking $72 million over five years to implement important rail safety measures and legislative initiatives. These amendments to the Railway Safety Act that we see before us today are the fruit of that commitment. This initiative also shows how important these amendments are to the government, and it reflects the government's commitment to seeing these amendments implemented as soon as possible so that Canada can reap the benefits from them immediately.

In March 2010, the government introduced Bill C-33, An Act to amend the Railway Safety Act. It contained essentially the same range of changes as the bill before us today does. Bill C-33, which all the parties in the House supported, was considered in detail by the Standing Committee on Transport, Infrastructure and Communities and then approved unanimously by all hon. members after some minor changes were made.

Unfortunately, Bill C-33 died on the order paper after many consultations, analyses and a very favourable reception, because the opposition chose an unnecessary election over the safety of Canadians. Knowing how important these essential amendments are with regard to safety, we reintroduced the same bill in the Senate, with the changes that everyone had agreed on.

Since then, a number of witnesses representing stakeholders have expressed their views and the bill has been reviewed and discussed at length in the standing committee of the other place. I am very pleased to say that the Senate committee, like ours, unanimously approved the bill with a slight change that was essentially administrative in nature.

There is clearly a lot of support for this bill from all parties. There have been thorough consultations over several years. The bill has been agreed upon in its various formats by all key industry stakeholders, as well as members of both the House and the other place. It is our responsibility to end this long debate and expedite the passage of this important legislation for the benefit of all Canadians. The safer railways act is acknowledged as the blueprint for the future of rail safety in this country. It would directly address the safety challenges that have been identified by two national reviews with innovative legislative solutions that would help make our railways and communities safer for years to come.

Mr. Speaker, allow me to highlight some of the key amendments included in Bill S-4. Each one is an important part of a comprehensive safety package.

In accordance with the recommendations arising from the Railway Safety Act review and the study by the Standing Committee on Transport, Infrastructure and Communities, the amendments under review will improve Transport Canada's oversight capacity by conferring on the Governor in Council the authority to require railway companies to obtain a railway operating certificate, attesting that they have met basic safety requirements, before commencing their activities.

The operating certificate, which will demonstrate that the company complies with baseline safety requirements, will apply to all railways under federal jurisdiction. Existing companies will have a two-year period from the coming into force of the amendments under review in which to meet the requirements for the certificate.

The amendments in Bill S-4 will also strengthen Transport Canada’s enforcement capacity in order to ensure better railway company compliance with safety rules and regulations. To that end, the department will apply monetary penalties to improve rail safety. The maximum amount of the penalties will be $50,000 for an individual and $250,000 for a corporation.

The new act will also strengthen Transport Canada’s enforcement powers by increasing fines to levels consistent with those for other modes of transportation. Maximum fines for convictions on indictment for a contravention of the act would be $1 million for a corporation and $50,000 for an individual. Maximum fines on summary conviction for contravention of the act would be $500,000 for a corporation and $25,000 for an individual.

One of the most important benefits of Bill S-4 is the increased focus on the importance of safety management systems. As members may know, a safety management system is a formal framework for integrating safety into day-to-day railway operations. During the Railway Safety Act review, stakeholders were supportive of the SMS approach to safety, but some felt that improvements were required before SMS could be considered fully implemented.

The amendments we are discussing today address those concerns. For example, under Bill S-4 all railway companies would be required to appoint an accountable executive responsible for all matters of safety. The legislation would also require all railway companies to implement whistleblower protection so that employees felt encouraged to report safety violations without fear of reprimand.

Railway companies would also be required, through the auditing process, to demonstrate that they continuously manage risks related to safety matters through the use of safety management systems. Changes like these would encourage the growth of a true culture of safety at both the corporate and operating levels of railway companies.

I noted earlier that the Senate committee had unanimously approved this bill with one minor change related to safety reporting. Although this bill originally called for the development of a new safety reporting process with the Transportation Safety Board and Transport Canada, all parties agreed that a reporting system already exists—the Transportation Safety Board—so that clause was struck. The rest, as mentioned, was agreed on unchanged.

The Safer Railways Act is clearly a step forward in terms of oversight, enforcement and the implementation of a safety system in the industry. It also advances safety in the administrative area by clarifying the authority and responsibilities of the minister in respect of railway matters. For example, these amendments will clarify that the legislation applies to all companies operating on federal track and will ensure that those companies are subject to the same high safety standards.

Bill S-4 is about safety. It is also about protecting our environment. By expanding regulation-making authorities, this legislation will allow Transport Canada to request an environmental management plan from all railways for federal review.

It will also allow a requirement for increased environmental information collection and railway equipment labelling related to emissions. These amendments plus an additional amendment to provide regulatory authority to control and prevent fires on railway rights-of-way are critical to strengthening environmental protection in the industry.

And that is what the amendments to Bill S-4 are basically all about: better oversight tools to ensure safety; enhanced safety management systems to build a stronger rail safety culture; and additional authority to help protect our environment from unnecessary degradation.

It is hard to argue with the importance of these amendments. Railways are an integral part of our infrastructure now, and they will be so in the future. We need them to be strong. We need them to be dependable. And we need them to be safe. All Canadians can benefit from that.

We believe that these amendments to the Railway Safety Act are essential and timely. Bill S-4 modernizes the Railway Safety Act to reflect the requirements of a growing and increasingly complex rail industry, and I believe that we can all agree to the important safety amendments contained in this bill both quickly and unanimously.

The bill is a step forward for Canadians, for safety and for the rail industry. With the agreement of the members today, we can take these steps together today, for a safe, reliable and economically viable freight and passenger railway system in Canada. The bill has been extensively debated over several years and has received wide support. I recommend that it be submitted to the Standing Committee on Transport, Infrastructure and Communities for further discussion.

I urge all hon. members to give this important bill their unanimous support.

Transportation Safety

[Denis Lebel, Conservative, Minister of Transport]

Mr. Speaker, this has been discussed in the past, but as the member knows, that involves many partners, including unions and managers of rail companies, who will continue these discussions because it was tasked to have further discussions. We are very close to an agreement and to adopting a piece of legislation.

I would like to remind my colleague that for her party an opportunistic election was more important than ensuring the safety of hard-working Canadians. The previous version of Bill S-4, Bill C-33, died on the order paper on March 21, 2011. It went through first reading, second reading, committee stage and was reported to the House. We were so close.

Transport, Infrastructure and Communities

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I have the honour today to present, in both official languages, the 10th report of the Standing Committee on Transport, Infrastructure and Communities in relation to Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act. The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you again, Mr. Chair.

This amendment will give parliamentarians the authority to review the regulations created by Bill C-33 if needed. We had similar amendments done in this committee for Bill C-6 and also for Bill C-9.

[The Chair, Conservative, Merv Tweed]

Welcome.

Saying that, we will move into clause-by-clause on Bill C-33.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed to the end.

We are now on clause 2. There are no proposed amendments for clause 2.

Shall clauses 2 and 3 carry?

(Clauses 2 and 3 agreed to)

(On clause 4)

We have several amendments on clause 4.

Monsieur Laframboise, do you have a point of order concerning this?

[The Chair, Conservative, Merv Tweed]

Welcome and good afternoon, everyone, to the Standing Committee on Transport, Infrastructure and Communities, meeting 55.

Our orders of the day, pursuant to the order of reference of Wednesday, December 8, 2010, are for an examination of Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.

Joining us today as witnesses from the Department of Transport are Mr. Luc Bourdon, director general of rail safety, and Carla White-Taylor, director of the rail safety secretariat.

Welcome.

I'm not sure.... You don't have a statement, but are just here to offer advice as we go through; is that the case?

[Rob Merrifield, Conservative, Minister of State (Transport)]

Thank you, Minister Strahl, and my thanks to the committee for the opportunity to speak on some of these estimates. I want to encourage the committee to continue with Bill C-33. I follow your work closely and encourage you to have that clear very soon so that we can get it into law as quickly as possible, and I know that's the intent of the committee. So I encourage you to do that.

I want to talk a little bit about Marine Atlantic. Marine Atlantic is a line issue that is $4.4 million to the corporation. These funds are covered because of the changes in the specific vessel and the shore-based capital projects included in the 2010-11 budget right up to 2014-15. That's in the corporate plan.

MAI ferry service is a tremendously vital link to Newfoundland and Labrador, the Atlantic region, and Canada as a whole, both for the businesses that work there and for the economic growth of the region. Marine Atlantic serves thousands of travellers each year and it carries over 50% of the goods entering Newfoundland and Labrador. The ferry service also supports the tourism industry in that area and will be able to do so in a much better way as we move forward.

The government has invested almost a billion dollars since 2007 in Marine Atlantic, revitalizing not only its vessels but also its onshore facilities. It will be flowed out over the next couple of years. We have had the opportunity to bring into service MV Blue Puttees, a brand new vessel, and the first of two. This is a tremendous vessel. I had the opportunity to visit and inspect it, and to talk to the individuals who work on the vessel. They're very proud of it, and rightfully so. It's two football fields in length. It's a massive vessel that will have over 40% more capacity than the MV Joseph and Clara Smallwood and the MV Caribou, the vessels it is replacing. We also have the MV Highlanders, which is expected to be in operation on April 1 as well. I can tell you MV Blue Puttees is in operation for the first week this last week and is serving that area very well.

In fact, the most significant change in these supplementary estimates occurred because these vessels actually came in a little bit earlier, and that's why the money had to be advanced. Both are important and needed investments. It's important for Marine Atlantic to have the ability to supply the services to Newfoundland and Labrador. We're working closely with the Newfoundland and Labrador department of tourism, not only because of the increase in demand for capacity for vessels and passengers, but also for tourism in the area. With these new vessels, the opportunity for tourism in that area will greatly increase as we go into the summer.

So with that, we'd love to take any questions you might have on these estimates.

[Chuck Strahl, Conservative, Minister of Transport]

Thank you, Mr. Chairman. Thank you for the invitation to meet with you and the committee.

I'm pleased to be here with my colleague, Minister Rob Merrifield, to provide you with an update on the transport, infrastructure, and communities portfolio.

I'd also like to extend my thanks for the hard work you've done recently on Bill C-33, the Safer Railways Act; Bill C-42, the Strengthening Aviation Security Act; and Bill C-511, the Proactive Enforcement and Defect Accountability Legislation (PEDAL) Act.

With us today are Yaprak Baltacioglu, Deputy Minister of Transport, Infrastructure and Communities; John Forster, associate deputy minister of infrastructure; and André Morency, assistant deputy minister of corporate management and crown corporations governance at Transport Canada.

Committee members, at our previous appearance, in December, we provided you with an update on the portfolio. I spoke about the funds under my portfolio and how our infrastructure investments are benefiting communities across Canada, as well as our successful and productive partnerships with provinces, territories, and municipalities. I also spoke about aviation security and our borders and gateways.

Minister Merrifield spoke about Marine Atlantic Incorporated.

Today I'd like to update you on our accomplishments to date under the transport and infrastructure portfolio, as well as speak to you about what the future may bring.

In my December appearance, I spoke to you about the four funds that Infrastructure Canada manages under the economic action plan: the $4 billion infrastructure stimulus fund; the $1 billion green infrastructure fund; the $500 million top-up to the communities component of the Building Canada fund; and the $25 million for the National Trails Coalition.

As part of the economic action plan, the Government of Canada accelerated and streamlined existing funds under the $33 billion Building Canada plan announced in Budget 2007. We did this so that our partners could benefit from these funds earlier than originally scheduled.

Across all of its programs since January 2009, Infrastructure Canada has now committed over $10.75 billion toward more than 6,300 infrastructure projects as part of Canada's economic action plan. When combined with the contributions of our funding partners, this means that approximately $31 billion is being committed to infrastructure projects across the country.

Shortly before my last appearance before this committee, the Prime Minister announced an extension to four of the funds under the economic action plan and extending the deadline to October 31, 2011. This extension includes two of Infrastructure Canada's funds—the infrastructure stimulus fund and the top-up to the Building Canada fund's communities component.

We've also been encouraged to see that most projects are still on target to be completed by March 31 of this year. A recent example of a project that will be fully completed by the end of this month are the new sails at Canada Place, which the Prime Minister visited on February 21. It's great to see that project, one of many that will be completed on time and on budget.

Across the country work is progressing extremely well. I know that some proponents who would have completed their projects by the deadline are taking advantage of the extra time for construction, which in some cases is resulting in savings on project costs. This sustained stimulus to the economy is allowing Canada to maintain its strength as we emerge from the recession, while respecting the fragility of the global recovery and without increasing costs for the taxpayers. It's a good win-win-win.

As we move forward in our exit strategy for the economic action plan, it's important to note that infrastructure funding will continue to flow to municipalities across the country. Infrastructure Canada is continuing to play a significant role in delivering long-term funding under the $33 billion Building Canada plan, including the gas tax fund. The gas tax fund was doubled to $2 billion per year in 2009, and the government has announced this funding is permanent so that communities can continue to rely on stable, reliable funding for their important infrastructure projects.

I will turn to transport. We continue our efforts to provide a safe and secure, efficient, and environmentally responsible transportation system. We're proud of this system because it's among the best in the world, and with the input of Canadians, all orders of government, and private stakeholders, we're making it even better.

I am a firm believer that progress can only be made through partnership.

I guess all of us in government realize that these world-class transportation systems aren't built from the top down. They really require those partnerships to be serious. It requires that we listen to those partners, and it really requires all of us, whether we're in the private or public sector, to work together. It's why I've been travelling across the country, speaking with everyday Canadians and with industry groups, getting a sense of their transportation vision. These groups include, amongst many others, the Chamber of Marine Commerce, the Railway Association of Canada, and WESTAC—I had a meeting a week or so ago in B.C—to name just a few. We've heard great ideas and will continue to dialogue with them as we move forward through the new year.

Today is also about moving forward. I know in the supplementary estimates we're seeking $23.9 million to take action on initiatives that were not fully developed or known when the main estimates were prepared, initiatives such as $14 million in annual funding to support the regional and remote passenger rail services class contribution program. That program ensures safe and reliable access to passenger rail service and ensures that it's provided to certain regional and remote areas of the country by contributing to operating and capital requirements for these important rail services.

The estimates also include $7.4 million for operating requirements related to the ferry services contribution program. This program supports regional and remote ferry services in Atlantic Canada and eastern Quebec. These services not only provide safe transportation to communities, but they support eastern Canada's regional economy and the transportation network.

This program supports regional and remote ferry services in Atlantic Canada and eastern Quebec. These services not only provide safe transportation to communities, they support eastern Canada's regional economy and the transportation network.

Existing agreements for these various services are set to expire on March 31, but on November 30, 2010, the Government of Canada announced an investment of up to $44.7 million to support ferry operations and to maintain the ferry assets.

In previous appearances before this committee, I have discussed the importance of the government's gateways and corridors strategy, which positions Canada as an integrated, efficient, and reliable transportation route. I know there's interest in the committee about the gateways. We continue to make progress on the 47 infrastructure projects that are part of the Asia-Pacific gateway and corridor initiative. We're moving forward with great interest and quite a bit of pride in how that has been rolled out. The next phase of the gateway will focus more on issues such as modernizing policy, regulatory issues, and legislative frameworks. This will improve efficiency and reliability through that partnership, which has been enhanced through this whole initiative, while boosting innovation.

I'm convinced it will also lever the benefits that both the private and public sectors gain from the Asia-Pacific initiative, and that's becoming more clear as we move through the process into phase two.

The line item noting the reprofiling of $17.1 million in funding for the Asia-Pacific gateway will help this process continue, and lessons that were learned on the Asia-Pacific gateway, which was first out of the gate, if I can use that phrase, will be applied to the Atlantic gateway and the Ontario-Quebec continental gateway.

You'll notice also, and this I think I should highlight, that within the estimates we're seeking to access $1 million from previously frozen allotments due to the reprofiling of funds for the acquisition of real property for the Detroit River international crossing, which is a key part of the continental gateway. We remain committed to the building of that new crossing. We continue to work closely with the State of Michigan and the United States government to make it a reality. We are monitoring the Michigan legislative process and continue to urge the Michigan legislature to authorize this project, which will benefit workers and industry on both sides of the border.

Now I will turn the microphone over to Minister Merrifield to speak on a specific line item.

Thank you.

[Karen Leibovici]

I think in this particular case it's the land usage issue if it lies within the provincial and territorial jurisdictions.

Just to go back to a point you made about the 300 metres, we don't have a problem with the notification. Whether it's 300 metres or 250 metres, that, I think again, will depend on what each jurisdiction requires and comes to as a result of the negotiations.

I haven't looked at the whole act, so I can't really reply to your question as to whether there are other items in the act that perhaps are under federal jurisdiction that involve municipalities. In fact there are lots of crossovers when we look at the issue of cellphone towers. We don't have much jurisdiction in that. That is within federal jurisdiction.

Again, with regard to Bill C-33, I can't say I know which pieces are within the federal jurisdiction and which are within the provincial-municipal, other than this particular piece we're talking about, which is the notification piece with regard to land use.

[Karen Leibovici, Second Vice-President, Federation of Canadian Municipalities]

Thank you, Mr. Chair and members of the committee. It's a pleasure to be able to present the municipal perspective on Bill C-33.

Our president, Hans Cunningham, asked me to share with you his greetings and also his regret that he could not be here with you today to speak to you.

Councillor Henderson is the co-chair of the FCM-RAC proximity steering committee and joins me today in this presentation.

FCM has been the voice of municipal government since 1901. We stand for more than 90% of the Canadian population, representing over 2,000 municipal governments across the country--large, small, rural, urban, northern, remote. We represent the interests of communities and cities on policy and program matters that fall within the federal jurisdiction.

Recently the FCM-RAC proximity steering committee heard from the Railway Association of Canada with respect to a number of recommendations pertaining to the Safer Railways Act. The Railway Association recommended that municipalities be required, under the Railway Safety Act, to notify railway companies with respect to proposed land use or bylaw amendments.

On behalf of Canada's municipal governments, I'm here today to reinforce our sector's opposition to the recommendations and to provide some information on why this opposition exists.

First, we have been made aware that the Railway Association of Canada has, subsequent to their appearance before this committee, submitted a letter clarifying their previous assertion that FCM had been notified or consulted prior to their appearance and that we were in agreement with the recommendation as presented. While we appreciate this gesture, we felt it was critical to appear today to deliver the message personally and to take the time to discuss this matter with you directly.

From the perspective of cities and communities across Canada, the proposed amendment would require such notification to railways if changes to land-use designations or bylaw amendments occurred within a 300-metre zone of the railway right-of-way. Municipalities agree that increased communication between us and railways can better inform land-use planning alongside these rights-of-way. However, as I indicated earlier, we cannot support the amendment as presented. FCM has long aimed to improve rail safety in populated areas. Railway operations impact daily on Canadian cities and communities. In recent years we have made submissions to the federal government on municipal railway issues. Our goal has included ensuring railway operators work with municipalities to provide safe rail crossings and develop appropriate separation buffers in populated areas.

Municipal land-use and zoning regulations are guided by and subject to provincial and territorial legislation. As you will recognize, this means that regulations differ from province to province and territory. The recommendation as presented by RAC will create a one-size-fits-all solution to a very diverse regulatory environment. As a result, red tape and delays will impact local land-use planning decisions.

Municipalities are the front-line public safety managers and continually consider the impact of land-use decisions on the safety of property owners. In many cases municipalities notify railways of land-use changes that may pose significant threats to railway safety. In the case of Ontario, these notifications are enshrined in provincial legislation. This process allows the adjacent property owner to use existing local public consultation and review processes to inform and influence municipal land-use decision-making. Thus, the proposed amendment requiring notification on land changes within 300 metres of the railway right-of-way would significantly increase municipal governments' administrative burden in the form of cost and time.

The same also applies to residents and businesses applying for land-use changes. For example, a 300-metre notification zone could easily encompass three to five city blocks in a medium- and large-size city, or, from a rural point of view, an entire municipality.

I mentioned Ontario's regulations. The 300-metre area cited in the RAC recommendation attempts to impose the Ontario case across Canada, because it's seen as ideal by the rail industry. The important point here is that the regulations in place in Ontario were the product of significant consultation and negotiation between the province and its municipal governments. Instead of calling for a national approach, which clearly impedes on provincial jurisdiction, a more productive way to promote this type of notification would be to seek a recommendation and encourage dialogue at the provincial level.

To improve communication on an understanding of municipal-railway interactions, FCM actively supported a memorandum of understanding with RAC in 2003. A joint working group on proximity issues was established to develop protocols, best practices, and guidelines to avoid and resolve precisely the types of issues we're talking about today. The tools were then communicated to our members. This approach allows a national dialogue to take place without impinging upon provincial jurisdiction.

As I indicated earlier, my colleague, Councillor Henderson, co-chair of this working group, has long been involved in seeking better communication between municipalities and private property owners. The working group has discussed designing a more streamlined way to notify property owners and others of land-use changes adjacent to railway rights-of-way. However, I would like to repeat that there is no one-size-fits-all solution to this issue. Our group's preferred approach is to develop and disseminate to municipalities and railway operators best practices around this issue to improve and continue to improve how these two groups work together on the ground.

In conclusion, for the reasons I have talked about, and in continuation of the work we have undertaken through our joint working group with RAC, FCM is urging this committee, on behalf of all municipalities across the country, not to adopt the proximity recommendation put forward by the Railway Association of Canada.

I would like to thank you and my colleague, Merrill Henderson, and I will be pleased to answer your questions.

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting 52. Orders of the day are pursuant to the order of reference of Wednesday, December 8, 2010, Bill C-33, An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act.

Joining us by video conference from Corner Brook, Newfoundland and Labrador, representing the Federation of Canadian Municipalities, are Karen Leibovici, second vice-president, and Merrill Henderson, board member.

Welcome.

We will open the floor for you to make a presentation to the committee. Then we will move to questions from the committee. Whenever you're ready, please begin.

[The Chair, Conservative, Merv Tweed]

Thank you.

Just for the information of the committee, we are asking that members submit their amendments to Bill C-33 by Monday, March 7, no later than midnight. We'll see you this afternoon at 3:30. Thank you.

The meeting is adjourned.

[The Chair, Conservative, Merv Tweed]

I don't think we can have any discussion until we see the motion, if it's there.

I just want to advise committee members that when we return on March 1, the first and the second meeting will be aviation safety and Bill C-511, and then we will continue on Thursday with Bill C-33.

The meeting is adjourned.

[Christine Collins, National President, Union of Canadian Transportation Employees]

Thank you very much.

I welcome the opportunity to be here. With me is Michael Teeter, who is my technical advisor.

The Union of Canadian Transportation Employees is the national union for rail, aviation, marine, and road safety inspectors. All of our inspector members are Transport Canada and Transportation Safety Board employees.

For the past four years UCTE has been making the case to Transport Canada, to SCOTIC, and to other interested parties that as we increasingly move into a safety management system world, we require, to as great an extent as possible, a consistent set of principles that will apply for all modes of transport. We need this so everyone can better understand that the idea of having transport companies managing safety is a good thing and not a bad thing. A public understanding and confidence in the transportation safety system is critical for all modes of transportation, and especially for rail, given the rail safety performance over the last years.

The UCTE prescription for an enhanced public confidence in transportation safety as we increasingly move towards SMS involves the following principles:

In all transportation safety statutes, the government and the Minister of Transport are legally responsible, and this responsibility does not leave despite the delegation powers in transportation statutes. Therefore, any ministerial delegations should be very carefully applied, and they should be applied with considerable restraint.

We recommend that only fully trained government inspectors should be responsible for legislative and regulatory compliance and oversight. This inspection and compliance layer should be present and required in all SMS statutes.

Any delegation to non-government workers and organizations should be governed by a conflict of interest provision. Conflicts and perceived conflicts should never exist. Inspectors who are responsible for SMS certification and SMS operations should be different from those who are responsible for regulatory compliance and oversight.

There should be clear whistleblower protections and provisions for reporting to third parties, in all transportation safety statutes. These protections should also apply and be available to the government inspectorate.

The transportation statutes, including Bill C-33, should require the regulator to maintain the highest level of safety. This level should be clearly and unambiguously defined in either legislation or regulations, or both.

I will say that UCTE has an excellent relationship with Luc Bourdon, director general, and with his staff at rail safety. We support BillC-33 in principle, and like the other unions you have had before you, we do have some specific suggestions for change.

Let's face it, rail is a bit different from aviation or marine; there are fewer operators. SMS is not being certified and then handed off to the private sector. SMS is being implemented with regulations approved by the Governor in Council. The delegations in Bill C-33 are much more restrained than they are with either aviation or marine.

On balance, we are much more pleased with the rail safety regime than we are with either aviation or marine. We do have some amendments to propose, and comments on each.

We recommend that railway safety inspectors, enforcement officers, and screening officers be federal employees, with appropriate certifications and training. It is not explicit in the bill that these positions be government positions.

While there is a requirement that government inspectors be responsible for the oversight of federal-provincial agreements, there is no such clarification for the three positions specified in the bill. The bill seems to imply that the minister could delegate these powers to any individual. We would recommend that the statute specify that the people in these positions be government employees.

We should put these delegation and responsibility issues in context. Look what is happening in aviation and marine.

A recent B.C. Supreme Court decision has extended Transport Canada liability to the delegation of ministerial authority to a private contractor who was certifying the airworthiness of aircraft. Leaving aside the issue of the performance of that contractor, the contractor appeared to be in a clear conflict of interest, and people lost their lives because of it. We should never allow this to happen.

In the last year, on the basis of interventions by UCTE and others and a number of reports of the Transportation Safety Board, the Minister of Transport removed the ministerial delegations for the Canadian Business Aviation Association. Again, leaving aside the performance of the association, how could a trade association possibly be effective at the regulatory oversight and compliance of its own members?

We have a similar problem developing in marine, where there are proposals to delegate ministerial powers to organizations that are suppliers to the very companies they would be responsible to regulate. How could this possibly work in real life? We should never allow these same situations to arise with rail, even if that is not the government's intent at the time legislation is introduced and passed. When statutory delegations are not restrained, there is a tendency for regulators to broadly delegate in the interests of cost savings. We believe this is wrong and is not supported by the will of Parliament or the interests of the travelling public.

If Bill C-33 requires that the inspection positions be government employees, then this problem cannot exist.

We require a definition and standard for "highest level of safety", and make the system responsible to meet this standard.

We are very pleased that the bill makes reference to highest level of safety in proposed paragraph 47.1(1)(a). The reference is to risk management analysis and remedial actions only. Unfortunately, the term is not defined, nor does it apply across the board. We think it needs to, in the same manner and phrase as was proposed in the SCOTIC-amended Aeronautics Act that died on the order paper two elections ago. Simply make the whole railway safety system accountable to the "highest level of safety" and require that this be defined in the accompanying regulations.

We require third-party whistleblower protections.

The U.S. experience and whistleblower remedies are ones that we should all study. The United States aviation safety statute provides for an independent office for whistleblowers, both government inspectors and private sector employees. The fact is that even government inspectors are concerned about punitive actions that can be taken by government and private sector management, should those inspectors take a hard line against an operator. With today's fast-paced world, the pressures to operate quickly and on time are so great that many safety infractions can be overlooked for fear of the extra costs and reprisals associated with safety enforcement. We recommend that you put out the compliant process to a third party that is completely independent of commercial and political pressures.

Like the teamsters who appeared before you on February 10, we support the appeal to the SCOTIC provision that was inserted into the Aeronautics Act. We also support the explicit reference to the Canada Labour Code in the statute. We would also like to see these provisions added here.

In conclusion, like our brothers and sisters in other unions, we do not want this bill to die on the order paper and not be reintroduced. We need to give Transport Canada's rail safety program the tools this bill gives them to do their job better. We are not asking for significant and difficult changes to the bill. You could do these changes and still get this bill through the House and Senate quickly. We sincerely hope you will do this.

Thank you.

[Nancy Fréchette]

When we use federal railways, we have contractual agreements with the railway companies that require them to respect the Railway Safety Act Regulations. Therefore, based upon what we pay, we are certainly financing a portion of these tasks that serve to ensure that the railway companies are abiding by the regulations. If we are to carry out the same verification work, we will be responsible and accountable, as is presently set out in the bill.

This would mean that there would be an overlap between the management infrastructures. Unfortunately, such infrastructures come with a cost. Given that we are not a for-profit undertaking, a private enterprise, but a publicly-owned corporation, it is taxpayers who will be forced to pay for all of this.

There is also the matter of the value added through this. The act fulfils an objective. This objective will not be met if agencies like ours are included, because we achieve good results in the area of safety. We have a provincial act regarding railway safety. As for the federal laws we fall under, we respect them through contracts. This requirement would therefore be very costly.

You talked about the railway operator certificate, but the requirements pertaining to it are not defined. You mentioned that there might be consultations. As Mr. Kelsey stated, we would have liked there to have been consultations pertaining to Bill C-33, but there were none. Therefore, there is legislation and there are intentions, and we are going to work on what has been proposed.