Transport Committee on March 3rd, 2011

[Merrill Henderson]

I understand you're from British Columbia and you've been involved with municipalities, so you would know that. Let's go back to Ontario. Ontario put their regulations in place as a result of dialogue with the various municipalities they represent. They came to an agreement.

What you're asking for here is to impose this without any dialogue with the provinces. As you know, the Planning Act is covered by the province and is not a federal jurisdiction. Each province's planning act is probably different to some degree.

What you're suggesting here is that putting this in place without any dialogue, without any consultation with the provinces, should be in order. I have a little problem with that.

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

In answer to that, the railroad right-of-way is a federal issue. For instance, railroads have their own policing. The local police do not police on the rail right-of-way. They have no jurisdiction over there.

It is a federal issue because we're talking about rail safety and that corridor. I think the railroad has a right, because they have the legal undertaking and the liability of keeping their rail line safe as per the act.

[Merrill Henderson]

Okay. I'm familiar with the railroad. I spent 40 years working for them, so I'm very familiar with them.

You just pointed out something that's very important. You said you have to get permission from the province before you can build close to the Trans-Canada in your area. It takes a long time to get a response from them. You think the rail industry would probably be even worse.

Just imagine yourself as a developer, going to build something somewhere and you have to go through the hoops the municipalities put you through. Then you're going to have to wait for the rail industry to give their approval as well. It could take months after you plan a development before you get a response.

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

That's my whole point, instead of saying not to have that notification of the rail, specify that they have to reply in a certain timeframe, and make sure it's a timely process. To me, that would be understandable for rail because they would understand that you wouldn't want to hold up your development applications. To me, that's the issue.

The railroad is a landowner within the municipality or region. They should be notified and be aware of what those land-use development permits are about.

[Merrill Henderson]

In fact, in my municipality the rail has a large tract of land, very much within the 300-metre zone, that they're attempting to sell right now.

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

I really appreciate what you said earlier about how you have been working with the Railway Association and talking about protocol and best practices. To me, this gets back to that. Why can't you determine with the railroad what they would think would be reasonable?

As I say, I still think there needs to be some sort of guideline as far as the distance from the right-of-way and the development of the land use within that right-of-way are concerned if the railroad is going to be responsible for the safety of that right-of-way. For instance, developing a high-traffic public area across a rail where there's going to have to be a higher load on the crossing is an issue the railroad is going to have to deal with. For a municipality, I don't think it would be reasonable for them to allow that kind of development without first notifying the railroad.

[Merrill Henderson]

I certainly agree with your point there. I think the municipalities, for example, do not want to create issues that are going to cause them a lot of problems as well. If we have something that is in close proximity to a rail line and we're starting to get complaints from our citizens, that's causing us problems as well as the rail industry. We don't want to go there, and I think most municipalities don't want to go there.

We do have a guidelines committee. We can certainly go back and look at this a lot more carefully and deal with it through our committee, but we've never had that opportunity yet.

[Karen Leibovici]

And the strength, as you know, of our association in terms of the Federation of Canadian Municipalities is that we do incorporate--have sitting at the table--the provincial and territorial associations as well, which gives us access to the provincial and territorial orders of government, who are the overarching bodies in terms of our planning authorities as municipalities. Again, the one size across the country with respect to this really doesn't fit.

As Councillor Henderson indicated, in Ontario there were significant discussions that occurred with the provincial government, the Railway Association, as well as with the municipalities, and they came to the 300-metre notification zone. Would that work in a place, for instance, like the Yukon?

I think those are the kinds of things that you can only do on a territory-by-territory, province-by-province basis, looking at what the needs are within each of those jurisdictions.

[The Chair, Conservative, Merv Tweed]

Thank you.

We're good here. We're good there.

Mr. Watson.

[Jeff Watson, Conservative, Essex, ON]

Oh, wow. That was quick, Mr. Chair. Thank you.

Thank you to our witnesses who are appearing by teleconference today. We appreciate your testimony. It's a little different, because we're not actually talking about the bill itself here but about proposed amendments to the bill.

I want to pick up a little bit from where Mr. Mayes, I think, left off. Obviously municipal development affects safety of rail rights-of-way. I think Mr. Bevington touched on the increased traffic from development that can affect at-grade crossing and the encroachment on rail rights-of-way. I think maybe some members of the committee are trying to figure out how we can best address some of the concerns of the rail companies, who have to be concerned about, and are primarily responsible for, safety; the federal government, who oversees that or regulates that; and the municipalities, who need the ability to make, in a streamlined fashion, appropriate land-use planning decisions.

I can see that one of the problems is that the federal government, of course, has no jurisdiction with respect to land-use planning. Adopting this kind of an amendment may.... I'm not sure how we could do that.

Let me see if I understand your position clearly with respect to the Railway Association of Canada's proposed amendment. Is it that you have an “in principle” opposition that there be some duty of municipalities to consult with the railways on these types of issues? Or is it, as Mr. Mayes was sort of getting at, that this is a distance issue in terms of what the setback should be? Is your opposition more around just how long it takes, which could be resolved by some sort of time limit on this duty to consult? Or do you just have an opposition in principle to this kind of formal duty to consult?

[Karen Leibovici]

No, we don't have an opposition in terms of the requirement to consult. We do that with our landowners. We do that as a normal process in terms of land use.

Our issue, as you indicated at the outset, is that this is not within federal jurisdiction; that this is a land-use planning issue, which is within municipal and provincial-territorial jurisdiction; and that by trying to make it a one-size-fits-all, what will end up happening is that we'll create a lot of difficulties across the country, because one size does not fit all.

So that's what the issue is. That there will be notification--we do that as a matter of course.

[Jeff Watson, Conservative, Essex, ON]

The Railway Association also, if I remember correctly, and perhaps someone on the committee can correct me, made some proposals with respect to making municipalities' abilities to get railway crossings much more restrictive.

Have you read that testimony, or have you heard that aspect of their testimony? What are your thoughts on that?

[Karen Leibovici]

I'm not aware, but Councillor Henderson might be.

[Merrill Henderson]

No, I'm not aware either.

Just by my observations, as I said, it seems to me that the number of crossings that we have, especially un-signalized crossings, are diminishing as opposed to increasing.

And I've never heard anything that you've just described, so....

[Jeff Watson, Conservative, Essex, ON]

Smaller communities in urban areas like the GTA each have their own issues and concerns. What are you hearing from them? Do you find that their concerns are shared? Are there differences between the concerns with respect to rural areas or urban areas? What can you tell me on that?

[Merrill Henderson]

I'm not familiar with that; I have never had any real dialogue about the GTA.

[Jeff Watson, Conservative, Essex, ON]

Okay.

I'm not sure I have anything else at this moment, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Thank you.

I'll come back to this side. Are there any more questions?

Ms. Gallant, for five minutes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you, Mr. Chairman.

To our witnesses, I'm pleased you can join us all the way from Corner Brook.

I was half expecting to see Neville Greeley there. Is he still part of the FCM?

[Karen Leibovici]

Yes. The mayor is our host while we are here. He is part of FCM, absolutely.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I'm glad to hear that.

Most of what I have to ask will be from the testimony we've heard. In my area of Ontario, we've solved the rail safety issue. We have no trains left running across our stretch of the country, though we've done our very best to ensure all of the level crossings are safe.

There was a comment made earlier by one of my colleagues across the way with respect to fatalities. From your organization's experience, has there been any breakdown done in terms of accidental versus intentional fatalities at these level crossings?

[Karen Leibovici]

Not to my knowledge, no.

[Merrill Henderson]

I don't have any as well.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

So we don't know if some of these fatalities are not as a consequence of the safety factor but they are more or less a factor of the driver's own intention to have this happen. It would be helpful to have that breakdown, both to help the municipalities as well as the rest of the regulators.

In terms of numbers of railway crossings, it has been discussed that the number is diminishing. Would you say there are any regions across the country where this is more or less observed?

[Merrill Henderson]

There again, I don't have that statistic available.

I would say it's probably because of something you just described, that most of the short lines are not used as much and they have been closed. I would suggest there's less rail throughout our whole country, and based on that, a number of level crossings had to be eliminated.