Let me give you a little bit of context in terms of how these provisions came along and what is their intent. The real objective we are trying to achieve here is a balance between the complaints and the concerns we have heard from communities and citizens, as well as the operational obligations of the railways.
As you know, in the parts of the act pertaining to railway transportation, section 3, there are numerous obligations with which the railways have to comply, and one of those obligations pertains to level of service.
Last week there was a motion tabled with this committee that touched upon those obligations with which the railways have to comply. In order for them to comply with those requirements of the act, they need flexibility in terms of their operations, because as you can appreciate, they are trying to meet the needs and demands of numerous shippers from across the country as well as the needs of ports, particularly ports on the west coast, which are getting increasing volumes of traffic, particularly from China and such. So it is really important that in looking at these provisions, we keep that context and that balance in play and in mind.
As well, we also have to remember that the railway lines in Canada are what I will call a shared facility or a shared asset. I think you received a letter from GO Transit's Gary McNeil following his appearance here, where he wrote to the committee some time ago expressing the concern following from the questions that were posed to him about what impact there would be on commuter rail services in particular if any restrictions are put on the operation of the railway.
In our three major cities, Montreal, Toronto, and Vancouver, those commuter services operate on, primarily, a CN line, but also a CP line, and if we start restricting the hours of operation for the freight services, those commuter services are also covered by these provisions. They are not exempt from them. The question then is, if the freight has to move within a certain hour or within certain parameters, when can the commuter rail operators operate their services?
We recognize that there is a huge issue with railway noise. How this came about, as all of you are aware, is that back in the year 2000, the Federal Court of Appeal issued a decision that basically told the agency they didn't have the explicit power in the Canada Transportation Act to deal with railway noise complaints. Since then, the government recognizes there's a vacuum. There's no other piece of legislation that can be used to deal with these complaints, and we take these complaints very seriously. That is why we are putting this provision into the bill, and it is why I believe even the witnesses you heard support the provision and want the provision to be passed as soon as possible.
The three provisions in clause 29 are going to correct this deficiency that hasn't existed since 2000. The objective that we are trying to achieve here is to be very clear in the powers that the agency has and the obligations of the railways, but also we want to make sure that the agency has the flexibility to deal with the issues and we don't want to constrain the agency by only allowing it to respond to certain things. So the provision does that.
The provision starts off in proposed section 95.1 listing what the obligations of the railway are. In the amendments that Mr. Jean passed around, we've agreed to add one more, based on the motions that were proposed. But this is basically what the agency is going to make sure of, that the railway respects these obligations that are in 95.1.
If a person has a complaint, they come to the agency and the agency will look at that complaint. The first thing the agency will do is look at whether the complainant has tried to resolve the noise issue with the railway in question. We like to encourage these voluntary approaches. You heard from the Railway Association of Canada. They told you they are working with the Federation of Canadian Municipalities, and they have in fact a very active initiative ongoing to solve noise disputes and other proximity issues. We want to encourage that. CP Rail does the same thing. They have a voluntary approach with the federation. We wanted to continue encouraging that.
However, we recognize that in a lot of cases we are not going to come to a solution. A solution isn't going to be possible. That is where the agency steps in. What the agency will do is, basically, if we leave the provision the way it is, it goes on site. It will go wherever the complaint is. If it is a railyard, for example, where the shunting is happening, or if there are idling locomotives there, or if it's on a track, the agency will go on site to look at how the operations are being done. It may need to look at things like noise impacts, decibel levels, or even if fumes or vibrations are being created. The agency will look at the whole situation and determine what action needs to be taken to resolve the noise complaint.
Those actions can be very rigorous, in that the agency is basically being given the power here to order the railway company--and I stress the word “order”--to take whatever action is necessary, either during operations or construction, to deal with that noise complaint. It could require the railway to move a certain activity out of one area of a yard to a different area of a yard; to not idle locomotives in a certain part; or to do shunting activities in a different part. These are the powers we are giving to the agency.
I can't stress enough that this is a huge hammer. There is no other mode that has this kind of hammer. This is the first time we're actually giving the agency the power to deal with a transportation company and be able to order it to do anything like this.
The other important thing to keep in mind is that the agency has the powers of a superior court. I know there were some concerns from the witnesses about what would happen if the railways didn't follow whatever the agency said. The agency is a court and has the powers of a court. It will require the railways to do that. The agency orders are fully enforceable, and we can't stress enough how important it is to give the agency flexibility, because by giving it flexibility, you are better able to address the very types of issues that you heard about from the witnesses.
Several of the members asked the witnesses if they saw one fix that we could impose. I don't think you got an answer on that. There are various situations, and whether it's on a line, in a yard, in an urban area, or in a more rural area, the agency will have the flexibility to deal with those issues. The powers we're giving it in this bill are very broad.
