Transport Committee on March 3rd, 2011

[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.

[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]

Thank you very much.

When a question has been asked, I won't recognize you; I'll just expect that you will answer after you've heard it completely.

Mr. McCallum, you have seven minutes.

[John McCallum, Liberal, Markham—Unionville, ON]

Thank you, Mr. Chair.

Thank you very much to the witnesses for being with us today.

I'm not sure if you're aware of this, but I'll be with you in Corner Brook tomorrow to talk to your members about infrastructure, affordable housing, and other issues.

On this particular issue--this is unusual--I really don't have any significant questions, because I totally agree with what you have said. I think it's logical, and I agree. So I think I'll just leave it at that.

[Merrill Henderson, Board Member, Federation of Canadian Municipalities]

We welcome you tomorrow. It's a beautiful climate over here. The sun is shining and you'll probably get a tan.

[John McCallum, Liberal, Markham—Unionville, ON]

Thank you. I look forward to it.

[The Chair, Conservative, Merv Tweed]

Thank you.

We'll go to Monsieur Gaudet.

[Roger Gaudet, Bloc, Montcalm, QC]

My question is simple. Unless it isn't done the same way in all the provinces, usually, when a municipality wants to make a zoning change, all the taxpayers affected by the change are told about it through a public notice. Isn't it done this way in all the provinces?

[Merrill Henderson]

Yes. That, in fact, is correct.

[Karen Leibovici]

It varies, though, across the country with regard to the area where the notice would be, the type of notice, how the notice would be provided. That is the reason it would be very difficult to provide this on a national basis. It varies per province and per territory, and it also varies in each municipality under the umbrella of the provincial and territorial acts.

[Roger Gaudet, Bloc, Montcalm, QC]

I agree with you.

I was mayor for a few years and when a zoning change was planned, everyone concerned by the change received a public notice. If a railway track had to pass through the middle of the town, the owners concerned received a public notice. I don't know if, in the other provinces, a letter is sent in similar cases. I didn't understand earlier why you said that the people didn't know. I would like you to explain that to me again.

[Karen Leibovici]

The proposal that was put forward by the Railway Association of Canada was that there be a uniform notice of 300 metres, but our position is that you cannot have a uniform notice requirement across the country.

I'm not sure if I'm answering your question or understanding what you're asking.

[Roger Gaudet, Bloc, Montcalm, QC]

I agree. Certainly, if a railway track goes through a place and there are buildings 30 metres from there, we cannot free up a 300-metre space on either side of the track. But, it could perhaps be done in the case of new railway tracks.

No one lived in the areas around highways in the past, but, now, there are many houses there, and people are asking that noise-abatement walls be put up. It's the same thing for railways. There are railways that pass right through the centre of Montreal and there are houses nearby. What can you do? If a person has a house built near the railway track to be close to the station, that person must deal with the consequences. There aren't only advantages to that, but disadvantages as well. What do you think about that?

[Karen Leibovici]

Each municipality puts in place its own bylaws with regard to proximity. Our committee looks at how we deal with those issues, how we put forward best practices that can be used across the country. The main issue at heart here is that there would be a uniform requirement across the country of 300 metres in terms of notification. Again, what we're saying is that it's not feasible to try to make it uniform across the country.

[Roger Gaudet, Bloc, Montcalm, QC]

So, you think it is impossible to have a uniform regulatory requirement across the country. No municipality and no province has the same bylaws. It's impossible because of municipal bylaws. The bylaws change from one municipality to another.

Thank you very much.

[The Chair, Conservative, Merv Tweed]

Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, and I want to welcome the witnesses to the committee.

I was also a mayor at one point and served on the FCM board of directors--I sat on your green fund for five years--so I'm very familiar with the organization. I appreciate your being here.

I've got a number of questions. The railway companies have stated interest in this because they say large developments in municipalities will impact them in terms of...I think in a number of ways. Of course, there's the level crossing issue, but I'm very concerned now with the high rate of deaths through trespass. Many people will cross rail lines because they perhaps are going to a new housing development. Within the community there are reasons to cross the rail or to use the rail line when they shouldn't be.

We're dealing here with railway safety. Of the deaths that have occurred in our rail system in the last number of years, all of them have been through either level crossings or trespass. So when we come to deal with safety, we want to understand completely how to reduce those numbers. I'm sure you agree with me that this is the requirement we're working on here.

The railways have come to us and said they need to be able to understand the nature of municipal development so they can better offer planning advice in terms of access and crossings. Wouldn't you see that the work here would be important for your municipalities across the country to come to grips with this particular issue? I know that perhaps we don't want to have a federal law that lays out the requirements of municipalities, but how would you propose that we increase the safety of people within the municipality, reduce the number of deaths at level crossings, and do all that work here without some measure of understanding between railways and municipalities?

[Karen Leibovici]

Thank you for that question, because that's exactly what the work of the proximity steering committee is about. Councillor Henderson will give you a little bit more detail about the exact work, but it's ongoing.

The committee was put together precisely to deal with those types of issues--the proximity issues and the conflicts that sometimes occur when you have railway lines in populated areas or railway lines that are at level crossings. There is an ongoing discussion between FCM and the RAC to look at how to develop and how to work with the best practices being put forward to improve safety.

Councillor Henderson can provide you with more information as well.

[Merrill Henderson]

Thank you for the question. In fact we do talk very often about crossings.

I just want to share with you that I live in the city of Moncton, and the rail line runs right through the centre of our city. We have a number of level signalized crossings, and in the years I've been there, I don't recall anybody being killed at them. I can recall that, probably in the last 10 years, there have been maybe two or three deaths caused directly by trespassing in areas where people shouldn't be trespassing. I don't know how you can control that.

As for level crossings and signalized crossings, quite frankly, I've never heard about those being a big issue that we need to be discussing. You say it's coming from the rail. On the committee I'm on, there is representation from CN, CP, VIA Rail, and all the short-line operators, and I have never heard discussion that such fatalities are a real issue.

[Dennis Bevington, NDP, Western Arctic, NT]

The numbers are such that between level crossings and trespassers, there are between 70 and 100 deaths a year in Canada. Those are significant numbers. Operationally, the railways recorded no deaths in the last couple of years. Sometimes when we look for safety, we look for where the problems are. The ratio of fatalities is something like three to one, trespassing to level crossing. Those are the statistics.

You might say that's not a problem, but 20 deaths at level crossings across the country.... We're dealing with railway safety here. This is the major cause of loss of life on the railway, so naturally we have to look at this.

[Merrill Henderson]

I'm sorry, sir, if you thought I said I didn't think it was an important issue. I certainly say it's an important issue. I'm saying it's something that we haven't addressed at the committee level. It hasn't been something put forth by the rail portion of our committee as a major issue. That's all I'm saying. I'm not saying it's not a major problem; I'm just saying we haven't discussed it.

[Dennis Bevington, NDP, Western Arctic, NT]

Okay, good.

That might say something about the railways' understanding of what it's going to cost them, in some cases, to fix the problems and to reduce the number of level crossings. Everyone's going to be involved in that. We could propose regulations that would make level crossings more safe, through higher safety standards than what apply now. Those are things we could do here.

What the railway said to us was that they need some understanding and control over the creation of new level crossings, because the numbers are getting very large with level crossings. They're increasing in Canada, whereas in North America, generally in the United States, those numbers are going down, because they're getting rid of level crossings; they're consolidating them; they're creating overpasses or underpasses, whatever may be the case.

That work is going on. You guys are really a major partner in this, and I would really respect anything you could add to this discussion in order to come up with some ideas that we could put forward on this particular topic.

[Merrill Henderson]

I would say that the municipalities certainly don't control where level crossings go. Level crossings, as I understand it, are controlled by the Canadian Transport Commission and have to have their approval before they can be put forth or be created. Municipalities really don't have any input into that whatsoever. They may request it, but in the last few years in the city that I live in, I don't recall level crossings being created. In fact, there are some being reduced--they'll just be going in the other direction.

[The Chair, Conservative, Merv Tweed]

I have to stop you there.

Mr. Mayes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you to the witnesses for being here today.

This is the Railway Safety Act, so we're talking about safety and we're trying to ensure the railways can provide a safe corridor.

To give you an example, I'm from British Columbia. I was one of the directors of the Union of BC Municipalities. We are on the main line of CP Rail. The Trans-Canada Highway goes right through our community. There was a provision that any land-use applications within 1,200 feet of the Trans-Canada Highway had to go to the province for their review.

So I can't see how this is any different. This is a rail right-of-way. The railroad has taken on the responsibility and liability for the safety of their right-of-way. It's just natural that they would want to be notified if, for instance, the municipality wanted to put a school close to a railroad right-of-way all of a sudden. That wouldn't make a lot of sense. I know that municipalities operate and plan their communities better than that.

I could understand if you felt that the 300-metre distance was too much or too cumbersome, or else you would insist that the railroad had to have a response time in the application. I always found that the problem with the province was that it took literally months to get back to us to give us their okay on these applications. I also found the railroad is quite slow in responding to municipalities.

I can understand if you approach it in that way, but I don't think that's necessarily a good practice not to let the railroad understand the land use along the corridor and what your decisions are.

How do you feel about that?