Evidence of meeting #31 for Transport, Infrastructure and Communities in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
5:35 p.m.
Conservative
The Chair Conservative Merv Tweed
We're still discussing Mr. McGuinty's amendment L-3.3, inclusive of the amendment put forward by Mr. Jean. Are there any other comments?
5:35 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Sorry, Mr. Chair, but are we now considering Mr. McGuinty's subamendment?
5:35 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
It has to be a friendly amendment. That's my understanding.
5:35 p.m.
Conservative
5:35 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
I support Mr. McGuinty's subamendment, which helps to further extend how our legislation should take into consideration railway noise, and I will give a heads up to the committee that once we've dealt with this subamendment and we have dealt with the subamendment that Mr. Jean did on top of his own amendment, I will be offering a subamendment as well that will incorporate NDP-13. That will allow us to consider all of the aspects of clause 29 before we move on after that.
5:35 p.m.
Conservative
The Chair Conservative Merv Tweed
I can advise Mr. Julian that NDP-13 can be dealt with independently. It does not have to be presented as a subamendment, just for the record.
If you choose to do that, though—
5:35 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
I understand Mr. McGuinty's amendment, but I oppose it. I had the opportunity to question representatives from the department. I have a municipal background, and thus I know that decibel metres are in current use. Technology is used to enforce standards in noise levels. Mr. Langlois made a fine presentation. Now I am convinced that the agency will have to find ways to regulate the industry and that this will unavoidably involve new technology.
From what I gathered from Mr. Langlois' statements, we must avoid establishing another minimum-maximum standard. This would be equivalent, as it were, to a licence to create pollution or make noise. I do not think that this is good. I would rather let the agency have the freedom to use new technology as need be. Thus, if there is an issue, if the study reveals that the noise level is too high, a limit on the noise level could be imposed.
Mr. Langlois, I would like you to carry on with your explanation.
5:35 p.m.
Legal Counsel, Legal Services, Department of Transport
Paragraph (d) of the amendment moved by the government was basically aimed at covering all the human health aspects. This paragraph, which states that the railroad must take into account "the potential impact on persons residing in properties adjacent to the railway", obliges the railway to take these factors into account. If there is a complaint, the agency, based on these factors, could use other external factors, like the standards that Mr. McGuinty's request alludes to, to determine whether the railway is meeting its obligations pursuant to this paragraph. The agency could always resort to such external factors to determine whether the railway has met its obligations pursuant to section 95.1.
5:35 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
I think that your concern has something to do with the fact that US legislation includes decibels. What was the impact of including this?
5:35 p.m.
Legal Counsel, Legal Services, Department of Transport
I am afraid that by including very specific standards in paragraph 95.1, they cannot be applied everywhere at all times, and that the railway would have to comply with them no matter what the circumstances are. We must show some flexibility when we set standards on a national scale. If we set specific standards and the railways comply with them, the agency will no longer be able to intervene.
If the agency had more leeway, it could, under certain circumstances, determine that even though the standards have been complied with, that it is not enough. It should have the power to impose higher standards on railways. This would give the agency the opportunity to take specific circumstances into account in each case.
5:40 p.m.
Conservative
5:40 p.m.
Liberal
5:40 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Can you tell me what “operational requirements” might embrace, when the agency is actually looking at this question of tests of noise? How broadly can “operational requirements” be interpreted?
5:40 p.m.
Legal Counsel, Legal Services, Department of Transport
The notion of operational requirement refers to their obligation. They have an obligation of service to all of their shippers, so they have to take that into account. They're a railway, so obviously they have to operate their railway—they have to operate their yards; they have to operate their trains. You have to take into account the fact that they have an obligation to operate, have an obligation to carry freight—
5:40 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
What does “operational requirements” mean? You've just told me now, for example—something I didn't think of earlier—that operational requirements actually embrace the economic success, potentially, of shippers.
5:40 p.m.
Legal Counsel, Legal Services, Department of Transport
It's all a balancing exercise. The railways have obligations under the act. If you go to sections 113 to 116, they have an obligation; they cannot refuse traffic. If a shipper goes to them and says, “You carry my traffic”, they can't tell them, “No, I'm not going to carry it.” There's a common carrier obligation; they have to pick up the traffic.
You have to balance their obligation to carry traffic and operate their trains with the other element of the equation, which is, in doing so, to make as little noise as possible. It's all going to be a balancing exercise.
The danger I was explaining is that if you set a norm that is fixed and is applicable to all railway operations in the country, you run the risk.... First of all, you're going to have to set the bar a bit higher, because the norms will have to be susceptible of being applied throughout the country. If you look at the United States—and Ms. Borges can elaborate on that—their standards are set out in regulation and are very high in terms of decibels. If you do that, you run the risk that the railways will only meet these requirements.
What this act does here is allow flexibility for the agency. Even though a railway may meet any standards that are prescribed internationally or nationally, the agency may say, “This is not enough. You have to meet further standards. You have to go further than those standards require.”
5:40 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
Let me ask you, then, if I might, how is the wording I proposed here going to set a minimum floor that will lead to the American experience? The wording has actually been designed to embrace referencing current scientific research and relevant national and international standards. It doesn't actually say that it shall be 37 decibels. It says that in weighing this question of noise, the agency, with lots of flexibility, shall be cognizant of international and national scientific research standards.
How is that in any way fettering the freedom of the agency to come up with a balanced approach?
5:40 p.m.
Legal Counsel, Legal Services, Department of Transport
I'm going to let Ms. Borges answer that, but the first concern I have is that the way I understand your amendment, you want to include this wording in the opening paragraph of proposed section 95.1. If you do so, you set out the norm. That would be the norm, and everything that follows in proposed paragraphs 91.5(a), (b), (c), and (d) will become accessory.
The railway will have to meet these standards. Even though they have operational requirements and levels of service obligations, the norm would be that they would have to meet these standards. So you don't create that balance that is sought in section 95.1.
That's why we put in the proposed paragraph (d). I strongly feel that proposed paragraph 91.5(d), which is put forward here, includes somehow the standard that you want to include in your motion.
5:40 p.m.
Liberal
David McGuinty Liberal Ottawa South, ON
My second question, if I might, Mr. Chair, is if it is so difficult for the agency potentially to interpret, for example, a decibel test, why after two years have the Railway Association of Canada and the Federation of Canadian Municipalities both signed off on precisely those norms?
5:40 p.m.
Director General, Surface Transportation Policy, Department of Transport
Can I answer that, Mr. McGuinty?
Your amendment is seeking to amend proposed section 95.1. Proposed section 95.1 is the obligation on the railway. The question you just asked pertains to proposed section 95.3. In proposed section 95.3, we specifically say that:
the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to prevent unreasonable noise
The things you're speaking about—the measures that the Railway Association of Canada and the FCM, the guidelines that the World Health Organization, and the regulations that the Americans have in place—all fit under that element. That's what you're asking the agency to take into account in deciding the action that needs to be taken. It's in that proposed section there.
What we're suggesting is, leave it broad for the agency; they're going to look at those things anyway. There isn't a consensus internationally; we can tell you that. Leave it to the agency to determine exactly what actions are needed.
You don't impose that on the railway; you impose it on the obligations of the agency to have the flexibility to determine what the best action is and what guidelines, what measures, what rules, what regulations they want to include as part of their solution.
I think we're just focusing on the wrong part of the bill. What you're suggesting, really, is covered by the obligations of the agency and what the agency will be looking at.