Transport Committee on March 3rd, 2011

[Chris Warkentin, Conservative, Peace River, AB]

Thank you.

I'd like to pick up where Mr. Fast left off. You speak about the Ontario model and describe it as being one of success. Where the rail must run in Ontario must be very diverse. There would be rural communities, northern communities, and very urban communities. The GTA would respond to the same regulations. So it seems to be a good test field, or a place where you as an organization can assess whether or not it is the right approach.

Having considered the success in Ontario, do you find that the 300-metre setback is more effective in rural communities versus urban communities? Who is succeeding in Ontario? Who is being challenged as a result of the regulation? That input would be helpful as we consider its application across the country.

What's your current assessment on the differential, based on the different types of communities that are served and represented in Ontario?

[Merrill Henderson]

I can't comment on that. I'm something like you; I know they put it in place, that's all. I don't know how it affects...I haven't been given any information to tell us how the various municipalities have been affected or have responded to this.

[Chris Warkentin, Conservative, Peace River, AB]

I guess that's what this committee is looking for--some insight. You have described the Ontario model as being one of success. We've talked about the differences that are represented in the province. When you look at communities—some of which are urban, some of which are rural, some of which are up north, and some closer to the south. It's got to be a good model that you could extrapolate some of the outcomes and apply them more generally across the country.

I represent several communities where the railroad runs right through the community. What inevitably happens, it seems, is that the railroad is there, the community grows around it, and as the community grows and as the region grows and develops, there's more traffic on the railroad, and before you know it people are complaining about this noisy railroad that's running through their community, whereas it was the generator of or the reason the community exists there today.

I'm curious. I think you're opposed to this amendment, but you seem to be.... Maybe I'm missing something. You seem to be opposed to this particular amendment, but you seem to be very supportive of what happened in Ontario where they applied a very similar requirement. I'm not quite fully understanding.

It seems to be a reasonable one. Representing a community that runs up against the Northwest Territories...I don't see how the application is significantly different.

[Karen Leibovici]

The difference, and what we're supportive of, is the discussions that occurred with regard to the municipal land-use issue, which is within provincial and territorial jurisdictions and not within federal jurisdiction. We are suggesting the process was a good process. Whether that process provided for 250, 300, or 350 metres, that was the outcome of the process.

But what we're seeing potentially happening here is that there would be a cross-Canada application of a 300-metre notification distance, when what we should be talking about is how we deal with the issue of notification in municipal and provincial jurisdictions. That process was successful in Ontario. They were able to sit at the table with the municipalities, the associations, the province, and the railway association and come to an agreement about what the notification distance would be.

I think if you use that model across the country, it would then be tailored to the needs of those municipalities and those provincial jurisdictions. It works in Ontario. The 300 metres may not work in some other province or some other territory. Again, we're talking about municipal jurisdiction.

[Chris Warkentin, Conservative, Peace River, AB]

I think I'm understanding the point you're making a little more. You have no concern with regard to the 300 metres specifically. You're concerned about the understanding, the constitutional reality, that municipalities are a creation of the province and therefore there's a jurisdictional difference.

It may be difficult to make that full argument, in that railways, of course, are federally regulated, so there is some overlap. I'm not a constitutional expert, nor do I want to begin the debate. It's interesting. I'll maybe have to remind my FCM representatives who come to my office next time that, no, they should be speaking only to the province. I say that in jest.

I understand what you're saying and that it's a concern. Would you be uncomfortable if any requirement were included in this legislation that would involve municipalities at all, because it's coming from the federal level? Is everything off the table because this is a federal regulation and therefore if it impacts municipalities it should be...? Is it the position of FCM that it's something the federal government shouldn't touch and therefore shouldn't legislate on if it impacts municipalities?

[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.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you so much. I think my time's up.

[The Chair, Conservative, Merv Tweed]

Thank you.

Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Thank you, Mr. Chair. First, I am pleased to be with you at the Standing Committee on Transport, Infrastructure and Communities. I was on the committee for a long time.

Ms. Leibovici, I was the president of the Union des municipalités du Québec. So I am well aware of the situation. Your recommendation is very wise. If the federal government wants to get involved in provincial matters—the notices are issued by the municipalities, which report to the provinces—a constitutional battle is going to ensue. It is clear that there will be opposition to that. I understand what the railway companies would like to get. But the solution that you are proposing, namely, to negotiate with each of the entities by following a model that you are in the process of developing at the Federation of Canadian Municipalities, is the wisest.

If I was the head of the railway companies, I would accept that and would not get involved in a constitutional debate on the topic. They would lose their case anyway. So I am happy that you adopted that position. Your comments are very wise, and I hope that the committee will take them into account.

[The Chair, Conservative, Merv Tweed]

This is the final round for a brief question. Is there anyone else?

Mr. Mayes.

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

Just to follow up on what Mr. Laframboise mentioned, I want to make it clear that I don't think the railroad should have the right to tell you whether or not you can have a development. I think they need to work with you. I think they need to be notified, and there needs to be a determination of what that area of notification is. I wasn't suggesting that your jurisdiction would be trumped by the railroad as far as development on municipal or regional land goes.

There's another area that concerned me when I first saw the act. You haven't mentioned it, and I just want to know if you've talked to the railroad about it. Under the act, the railroad has to file an emergency response plan. My experience with regional government is that the regional government would put together an emergency response plan for their area, including the railroad.

Of course, you don't collect any taxes on the railroad right-of-way--at least they don't in British Columbia--so the community is providing the service, because the railroad is not going to have people all the way along the main line who are ready to respond to an emergency. They're going to rely on the local government or the regional governments to have that plan.

My concern was if that was going to be provided by the local government, they should be paying for that, especially if they're going to incorporate that in their plan, and they have to have a plan to get their running licence. Did you discuss any of those issues with the railroad association?

[Merrill Henderson]

That's a good point you just made. That's not something I've heard discussed, although in our community we have a very well-organized emergency response plan. I think years ago we used to have people from the rail industry involved in it, but I don't think we do currently.

But that's a good point. It's something we can bring up for discussion. Since I've been involved with the proximity steering committee, I have not heard it discussed.

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

I did bring it up with the department during the discussion here when they were witnesses. I gave an example of a locomotive that was derailed just beyond our community. There was fuel spilling and it was heading toward the Shuswap Lake. Our emergency people got out, put a dike around it, and secured the area. The rail employees finally responded to the accident, but it took some time for them to come from a distance away.

They are going to rely on local government to provide that service, so I think it's important. The department recognizes that it is important that rail work with the local government and the provinces on that emergency response plan. It's part of their running licence. If they don't have that, they're not going to get their running licence. So they're aware of that. That was my issue.

Thank you, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Fast, do you have a final comment?

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

Mr. Laframboise brought up the issue of getting into some legal entanglements on whether the municipality has jurisdiction over this notification area that's being proposed--whether the railways have jurisdiction or the federal government.

Have you sought a legal opinion on that issue? Obviously it's going to be a very important consideration. If the federal government or the railways have no way of actually imposing this requirement on you, it appears to me that it's dead.

[Merrill Henderson]

In our community, with any zoning that's going to be changed we have a requirement that anybody within 100 metres, not 300 metres, must be notified. That's something we put in place in 2005. This is beyond what the land planning act requires. Citizens were telling us they didn't know a certain zone had been changed, so we made sure that anybody within 100 metres was notified.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

[Merrill Henderson]

I'm not aware of us getting any legal opinion on this. It's a good point--something else we can look at.

[The Chair, Conservative, Merv Tweed]

Ms. Dhalla.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Thank you very much, Mr. Chair.

It's a pleasure to be here at the transport committee. I grew up in a family of boys, so I feel right at home here because there are so many men on the committee.

I know that Mr. Fast was speaking about the legalities regarding the jurisdictional issues, and I wonder if the FCM has spoken to the municipalities about the financial burden this amendment might pose to them.

[Karen Leibovici]

No, we haven't done that. This is an issue that has just come to our attention. If there is a recommendation from the committee to move forward with this, we will obviously need to do some of what you're asking in terms of indicating the issue by moving forward with an amendment, as proposed by the RAC.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Thank you.

[The Chair, Conservative, Merv Tweed]

Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

I'm still curious about the difference between what's being proposed here and what has been applied in Ontario. I'm unfamiliar with what's required in Ontario and what has been agreed to. Is it simply a notification requirement in Ontario, or is there a larger definition of consultation? Is it simply a letter that needs to be sent? How does that work?

[Karen Leibovici]

It's my understanding that it's a notification. Then whatever the planning processes are in Ontario as a result of the notification would kick in. That would probably differ from province to province to territory, as well as between municipalities. Different municipalities, under the umbrella of whatever the notification was, would have different processes on how they conduct their public hearings when you're looking at land-use amendments.