:
Thank you, and good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 31.
Pursuant to the order of reference of Thursday, September 21, 2006, we are examining Bill .
After a very successful last day, we're going back to the three clauses that have been stood. We are starting with clause 29 and we are dealing with amendment number BQ-4 on page 21 of your program.
I will advise Monsieur Laframboise that the chair has a concern with the motion, but I'm prepared to let you place it on the table, and then we'll proceed.
Monsieur Laframboise.
(On clause 29)
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The amendment is on page 21. At the same time, I will be discussing amendment BQ-5 found on page 22. We are suggesting that we add the other nuisances to the word "noise" so that the Transportation Agency really has the authority to issue guidelines for all types of nuisances. We have not focused solely on the word "noise"; that is why the heading of the clause is "Noise, Vibrations and Fumes".
Amendment BQ-4, on page 21, amends clause 95.1, which would read as follows: "A railway company must minimize any nuisance, including those caused by the noise, vibrations and fumes..." In this manner, the agency would have the authority to discuss all types of nuisances. This is why we have added the words "including those caused by the noise, vibrations and fumes".
The difference between amendment BQ-4 and amendment BQ-5, which is found on page 22, is that BQ-5 does not include the word "including"; it simply states "caused by the noise, vibrations and fumes". We would like to be able to discuss all types of nuisances and we would like to see the agency be authorized to deal with complaints regarding the various nuisances, including those caused by noise, vibrations and fumes associated with railways.
Then, we would amend clauses (b), by replacing lines 7 and 8 and (c), lines 20 and 21: "to minimize any nuisance, including those caused by noise, vibrations or fumes". The purpose is to add, to the word "noise", the other nuisances, including those caused by noise, vibrations and fumes. The agency would therefore be authorized to discuss all kinds of complaints regarding nuisances to the community.
:
Mr. Chair, thank you for recognizing me.
I want to direct comments in particular to the Bloc in relation to their amendments. The department has provided us with a proposal, at our insistence, that would be a compromise in some degree and would maybe satisfy, although the Bloc proposal is inadmissible, and I suggest it would be basically on your ruling, Mr. Chair.
I think that very possibly some of the consolidation of amendments we have proposed and the compromise we have proposed may fit in with and be satisfactory to the Bloc's intention, if, subsequent to your next ruling on BQ-5, I were able to provide those to the committee. I think they would actually answer some of the questions and maybe move us along a little more quickly towards the goal of trying to finish this today, Mr. Chair.
:
Okay. Thank you very much.
I'll start by answering Mr. Hubbard's question. Along with a couple of other federal departments, Environment Canada in particular, the department regulates the emissions of locomotives. Currently we have a memorandum of understanding with the railway industry where the emissions from locomotives are regulated, based on the standards put forward in American legislation, because, as you know, most or all locomotives are constructed in the U.S. That is how those amendments would need to be made.
If I'm not mistaken, in the Clean Air Act, which was tabled a few weeks back, the MOU will continue until 2010, and then the emissions from locomotives will be regulated on a regulatory basis in Canada, similar to the U.S.
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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.
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Yes, but as I was saying to , the Railway Safety Act prevails with respect to fumes released into the environment.
Recently, the department came to an agreement with the rail company. All locomotives are subject to the U.S. regulations because that is where they are built and manufactured. So this act does not grant this power.
With respect to vibrations, I should clarify that the vast majority of complaints received by the agency, and even by the department, pertain to noise. However, where there is noise, there are vibrations. I think that the two phenomena are closely linked. In my opinion, if we can resolve the noise problem, we will, to a large extent, be resolving the vibration problem.
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The legislative drafter confirmed that this was not against the law and that it was in order. So I didn't look into the issue of noise. My motion reads "must minimize any nuisance". Yours talks about unreasonable noise. I already have a problem with the expression "unreasonable noise". Personally, I would have been more stringent. I have a legal problem here.
I was able to take further steps and I will be receiving confirmation regarding this action a little later, by e-mail. My problem is that I'm working on something else. In other words, I did not focus on the word "noise". You talk about "unreasonable noise", and I feel that this is not adequate. Witnesses suggested the expression "as little noise as possible". I would opt for the expression "minimize the noise". The expressions do have significance.
I am not comfortable. You did not change the expression "unreasonable noise". In other bills, we have said "as little noise as possible". Later on, I will try to table the e-mail which states that this was in compliance. You can do what you like with it. You could reject my motion. That is not a problem, Mr. Chairman. I have more of a legal issue. I am not at all pleased with the House of Commons' legislative drafter, I can tell you that. This is not going very well.
:
The word "unreasonable" was chosen because it is currently used by the agency. With expressions such as "as little noise as possible" or "minimize", I can foresee a legal problem. For instance, the word "minimum" is very subjective. What do we mean by "minimize noise"? It must be understood that regardless of what the agency does, clause 95.1 establishes a standard that the railway company must take into account in its operations. The standard must be clear and comprehensible to the company. The word "minimum" would cause a legal problem because it has a broad, ambiguous meaning. It may be very difficult for a railway company to determine what is the minimum level of noise possible.
We are aware of the fact that the expression "as little noise as possible" was in the previous bill. The problem with this expression is that Canadian jurisprudence has but few decisions, if any at all, dealing with the meaning of the expression "as little as possible". This concept is not used frequently to establish a standard, whereas "unreasonable" is a concept found in nearly every existing federal law. Furthermore, it is a concept that the agency must apply on a daily basis. It is included primarily in air transportation provisions.
There is abundant jurisprudence dealing with what is meant by the word "unreasonable". When this bill comes into effect, it will be easy for the railway sector to determine whether or not it is respecting its obligations. There will be no ambiguity. At the same time, when a complaint is filed, the agency will not have any difficulty determining whether or not something is unreasonable. That is why the word "unreasonable" was used.
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Clearly, the thing that concerned me when we had the telephone witnesses in particular.... We had some witnesses from the Quebec area, as I recall, and then we had those who came in by telephone from British Columbia--Langley, New Westminster, Richmond. As I recall their statements, I think the witnesses indicated that their problem in the past had been that the railways had not been cooperative in terms of addressing noise issues, particularly the shunting and switching in the yards.
I understand the problem. I think it was pointed out that in one case in New Westminster, British Columbia, apartment buildings had been built within 100 yards of the railway lines. I see here in amendment NDP-13 a reference to 300 metres, which is about 1,000 feet.
The concern I have is that as in North Vancouver, noise problems have been substantial and they have continued. They're serious problems for a residential area. Whether it's high density or even residential...and I can refer to the Norgate neighbourhood in North Vancouver, where both as mayor and as MP I have had calls in the past from residents concerned about the shunting.
The intensity of the noise seemed to change, number one, with the change of ownership of the railway to some degree. That was where BC Rail switched over. Part of the noise came from the requirement at that time for whistling at crossings. When it was a provincially regulated railway, municipal councils were able to pass resolutions instructing the railway not to whistle, if the municipality chose to make that instruction, which they did through West Vancouver; they did in North Vancouver.
When it became a federally regulated railroad, the municipal bylaws no longer had any effect. The municipal motions no longer had any effect. And not only did the whistling start again, but the shunting complaints went up as well.
So I understand the importance, the obligation, to provide service for the railways. We have a letter from SkyTrain talking about urban rail transit, and another proposal that's later on, and it talks about the conflicts with its operational practicalities.
I just wonder whether or not the term “unreasonable”.... I'm happy to see proposed paragraph 95.1(d), the reference in here to the potential impact on persons residing in properties adjacent to the railway--which is new, I presume. So it does acknowledge that.
We talked before about health. Some of the presentations we had from witnesses talked about whether we could use a World Health Organization or a European standard for noise. I don't know if the department has done any research on that, but it seems to me that we need to put an emphasis on.... The goal should be to create the least noise possible while still operating a railway, rather than leaving the railways with the ability to say they have to run a railway; therefore, they don't need to seriously look at the noise question.
I think whether it's more modern technology, new couplers, different kinds of wheels, or track, or lubrication, or even policies as to how they do things within the yards, whether it's welding the rails, as you said in one example, or others, the goal has to be to reduce noise to the lowest possible level, recognizing that they have to run a railway.
I don't know if that's implicit in this, and that's my concern.
:
You have raised numerous issues, and I'll try to address them.
I think Monsieur Langlois' response to Monsieur Laframboise about the word “unreasonable” is true. It is true that in a previous version of the bill we had the minimal noise possible. When the drafters went back through the bill, as they normally do when they have the time.... Most of the bills we have use the word “unreasonable”. If you want more on jurisprudence, he can give you more.
The word “unreasonable” is the word that is traditionally used. That onus is on the agency. The agency will have to determine whether the activity and the noise is unreasonable. The railway is told not to make unreasonable noise. It is the agency that's going to determine that. They have the ability to go on the site, check what's happening, and order the solutions to the problem. The agency will be the interpreter of that. They will have the flexibility to deal with those issues.
You raised the issue of train whistles. I think you heard from some of the witnesses that whistling is in fact a federal requirement under the Railway Safety Act. Again, it is a safety rule.
There are already measures in place, where a municipality can work with the railway to eliminate whistling at crossings. There is a process, and I'll outline it quickly for you. Basically, the municipality contacts the railway to look at what the crossing issues are. The two parties--the municipality and the railway--conduct a safety assessment. If both parties agree that whistling can be minimized or eliminated, they send the report to our rail safety inspectors at Transport Canada.
Our rail safety inspectors look at what is being proposed. Often, technologies are put in at the crossing. You have systems, such as flashing lights, bells, arms, and all those kinds of things. Normally the federal government helps to pay for those. We have a railway crossing program, and we pay for up to 80% of the cost of those improvements.
Those things are already there. My safety colleagues are working, now, to look at a new way of whistling. Right now it's based on distance. So rather than basing it on distance, they are looking at basing it on time. The U.S. has already gone in that direction. They are currently looking at the new rule. That should help eliminate how many times the train has to whistle--depending on how far back it is. Hopefully that will alleviate some of the concerns.
I think you also heard, by phone, from Mayor Fassbender in Langley. Again, his issue is whistling. As you know, I deal with Langley closely; I am working very closely with them. The issue there is that the train track goes right through the middle of the town. There are very few grade separations in that town. They're building one now.
We are currently finishing a study on the rail corridor from Deltaport to Abbotsford, to priorize the crossings in terms of the volumes of traffic, and looking at crossings that need to be grade separated because of the traffic volumes and ones that may be closed in an effort to deal with the whistling issue. It's more a whistling issue there than in fact a safety issue.
We're hopeful that early in the new year we'll be able to announce a series of those projects--working with the municipalities, the province, TransLink, and the railways--and that this will be a mutual effort that everybody agrees to.
I can tell you it's going to be very expensive. Grade separations are very expensive. But to us, it's an improvement in terms of reducing the noise from whistling, improving safety for both car and train traffic, and improving the efficiency of movements in an area that is fairly congested. There are seven municipalities that are going to benefit from this.
There are a whole variety of measures we are undertaking that are not just happening there. We are starting similar efforts in the Toronto region, in Montreal, and even in places such as Winnipeg. You'll see more and more grade separation activity starting to happen. We recognize there is a need to make those improvements.
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This is terminology that has been interpreted thousands of times by the courts. It is readily understandable to everyone.
The day that this bill comes into effect, the railway will have an obligation to meet the standard. So it's easy for the railway, given the wide range of existing jurisprudence, to know what constitutes an "unreasonable noise". It will also be easy for the agency, should there ever be a complaint, to determine whether or not the railway met its obligation, because the jurisprudence establishes what is meant by unreasonable noise.
As for the other expression, it's not that it would be impossible for the agency to decide on whether or not a complaint was warranted if we use the words "as little noise as possible", it's just that there would be a little bit of uncertainty for a period of perhaps one, two or three years, namely, the time it will take for the agency to establish jurisprudence on the significance of the expression "as little noise as possible".
So that would create certainty which did not exist in the previous bill.
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I have one final comment for Ms. Borges in particular. The other hat I wear is as critic for the gateway, and part of the Pacific gateway initiative involves, hopefully, increasing the volume through our ports on the west coast, and that implicitly means increasing both truck and rail traffic.
Currently, we expect to see perhaps a 50% increase in container traffic. We're looking at going from 9% to 14% or 17% of west coast trade, so we can see maybe a 50% increase in our container traffic. Containers move on both trains and trucks.
Part of the gateway initiative that we had started as a Liberal government, and which is being carried on to some degree through the Conservative government's gateway corridor initiative, was to have rail grade separations, particularly in the Fraser Valley. Certainly there should be money available in that program. You mentioned they're expensive. There is a benefit not only of reduced noise but increased safety, and also a reduced number of conflicts.
We saw, for example, during the bus strike in the greater Vancouver area a year or two ago the impact of the congestion on the road on the movement of goods and services. Everybody was taking their car to work, and vehicular trucks that could make maybe five deliveries in a day--40-foot semis going to grocery stores and things like that--were limited to one or two deliveries a day. So there was a cost, an impact on the economy. It had an impact on the movement of goods and services.
I recently reviewed the gateway file again and am on top of it, and it's important to know that there is money in that program. It was targeted, and we should make sure it's being accessed. There could be a benefit with regard to noise and inconvenience as well.
I'm going to take a leap of faith and assume that the same rationale that was used by you, Mr. Chair, to rule Monsieur Laframboise's amendment out of order may be applied to subsequent amendments in this package of amendments dealing with noise.
Picking up on Mr. Hubbard's comments, it may be that I have the rules wrong, but I assume there's a prima facie understanding that when this goes through the drafting process of the legislative clerk of the House of Commons, who has drafted, after all, all these amendments, these amendments would at least pass the first hoop of legal opinion and legal opprobrium.
Secondly, I don't know what it is that Mr. Laframboise would have to have done to satisfy the committee. I read this in French, and I understand that the person writing this memo is Mr. Francis DesCôteaux, who is an employee of the House of Commons, not an employee of any particular member of Parliament—
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Thanks—confirm that the amendments would be admissible. So it's important for us as a committee to understand this I think, because we're now moving into another territory, if I understand Mr. Laframboise, who has invoked his right to appeal your decision.
I just want to make sure that we understood what this might have said in French and in English. I think that's what it says. It says that a third party—you're right, Mr. Chair, thank you—an employee of the House of Commons, has relayed the views apparently of two legal counsel saying that these amendments would be admissible.
But I want to pick up on something Mr. Hubbard said, because this would be the second or third time that my amendments have been proposed here, I arrive at committee, and they are rejected out of hand as inadmissible, and I'm not sure that is the right of the chair.
Maybe we ought to send a message back up the flagpole to the House of Commons procedural committee that we ought to work in a different way going forward, as a recommendation of this committee. But I want to get this clear, because before we even get into this question of further debate, or continue with this debate, I really need to know in terms of procedure where we might be going in terms of where we are now.
If we are now debating the admissibility or the appealability of your ruling, maybe you could help us understand where we're at in terms of order.
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Mr. Chair, I think you've been fair throughout this process.
We have a situation here that's a little delicate. Because we can also appeal your decision on unanimous consent, I think the will in the four corners of the room is that we would move to a consideration of the appeal of Mr. Laframboise.
I would urge you to move to that. Otherwise, we'll be caught up in a lot of procedural wrangling. Generally speaking, I think we want to consider this amendment.
I'm not reproaching your work or the work of the legislative clerk. I think you worked in good faith. But there's obviously an inconsistency here, and I think the committee as a whole politically will have to make the decision on how to treat that inconsistency.
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To that issue and to the advice we had from the clerk, the question I had written down is this: would the words of the legal counsel have made a difference? In other words, if we're drafting, which legal counsel, as opposed to a drafter...?
Your ruling related to the fact that a drafter was giving third-hand and second-hand comments or hearsay comments, if you want to call it that, from someone else. We didn't have the benefit of hearing them directly.
As a member of this committee, if I wanted to make an amendment, does it have to be done, as you're telling me, by naming a particular person who is only approved for this committee?
Secondly, do I understand correctly that the issue is on fumes? Is Mr. Laframboise criticizing the ruling because the inclusion of the word “fumes” is not acceptable?
I only want to talk about what Canadians want. Canadians see the filibustering that's going on right now.
We have 35 to 40 minutes to get this bill passed and out of the House. There are three clauses left to do. We have some compromises in front of us, some good language, and some other compromises that have come forward. Can we talk about the issue at hand, which is a bill that the rail industry and Canadians want to have passed through this committee and through this House?
We have 35 minutes to do it before we have to wait two months to get to the next stage. I would like to see it happen, but the reality is that I don't think there's going to be unanimous consent to open it up again.
We can do it procedurally, but we really have the guts of the situation right here in front of us, Mr. Chair. We've tried to come up with compromises.
Mr. McGuinty, I would suggest that none of your Liberal amendments are out of order. They'd come in later on and could maybe be encompassed here. We would certainly be open to any amendments you'd propose in relation to the consolidation we've done with the Bloc, the NDP, and you.
But let's deal with the nuts and bolts. It's what we have in front of us. Let's get on with the show. Let's get this done for Canada.
:
Mr. Chairman, I gave you that document. Earlier, you read your legislative drafter's decision. You read it, you did not give me a copy of it in both languages, and I did not ask you for one. I read the document out to you. I brought copies of it so that people can read it. I can read out to you the document that I received from the legislative drafter who drafted my amendment and who had asked for the legislative clerk's opinion. Let me read it out to you for clarification.
I do not agree with the position that you propose. I expressly asked the drafter who drafted my amendment to verify if it had been tabled, because that would change my working schedule. I want you to understand that. If I am not working on this amendment, I am tabling something else regarding the terms "minimum", "reasonable", etc.
Someone has misled me. Was it the legislative drafter who drafted my amendment? I asked for an opinion, because I wanted my amendment to be in order; otherwise, I would never have tabled it.
Now you are telling me that it is out of order. You did not give me three days notice, you are telling me that today. Since November, I was assured that this amendment was in order. This is why, last time, I questioned regarding an amendment. I know that I had asked for opinions to find out whether my amendments were in order. Now you are telling me that they are not in order. This is why I have doubts, not about your decision, but about the clerk's advice. This is not your decision. This is advice from your clerk. Nevertheless, the legislative drafter who drafted my amendment checked with the clerk.
It does not matter what happens to my amendment afterward. It can be defeated, anything can happen to it. However, as an elected representative, I feel that I have been cheated by the government apparatus. I do not feel cheated by you or by the committee and I do not want to create obstructions. I simply said that I wanted to adopt the bill today. That is my concern.
I have a list of amendments to propose, and proposals will no doubt be made if we add the term "vibrations". If your legislative drafter decides that it is out of order, then I have made no progress, Mr. Jean. If we can all agree about adding the term "vibrations" and if the clerk says that it is not in order, it comes down to challenging the clerk's decision.
I would like us to go ahead and add a few things. However, I am not sure whether your clerk gave you good advice. I have a problem with it. You should also have a problem with the fact that your clerk has given such advice.
I will probably agree with Mr. Jean about some amendments, but what will happen if they are not in order, Mr. Jean?
:
Thanks, Mr. Chair. I just want to add a few things.
I just want to make it very clear from the Liberal side in this committee that two or three times now the word “filibuster” has been used by the parliamentary secretary. There's no filibuster here. We've all been working very well on this for months, so it's unreasonable to make that suggestion. I am sure Mr. Laframboise is capable of saying the same thing--he just said it.
Secondly, Mr. Chair, I would draw a distinction between your comment earlier about you speaking on behalf of this committee and an officer and employee of the House of Commons relaying the legal opinion from two colleagues. We will agree to disagree on this, I'm sure. I don't think it's third party or hearsay.
I'm not sure if we're going to make progress on this, but we may want to set this aside until we have an opportunity to hear from the two named parties in this note.
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It might facilitate our actually hearing.... I am concerned with the way this has transpired. I think Mr. Laframboise, from what I can gather here in the correspondence, has taken all reasonable steps to try to secure agreement that these would be accepted at committee, and clearly they're not.
I'm not sure, as a member of Parliament, what test he's expected to meet. We got the clarification from the legislative clerk earlier about the role of a drafter and the role of legislative counsel, but this is a grey area where I don't think it is as black and white as it's being presented.
I am going to suggest we consider setting it aside, not in the interests of delaying this but to make sure this is properly treated.
I don't see, Mr. Jean, the concerns raised by Mr. Laframboise in his amendment reflected in the government's omnibus amendments at all. I see the same test being put forward—not causing unreasonable noise—and I would remind all of us that we had at least eight witnesses who came here and gave us written briefs and oral presentations saying that one of the biggest problems with this bill was the unreasonable noise test.
I am in your hands procedurally, Mr. Chair, and I sympathize with you. My support is with you. I'm not sure where we are now, but I think we're still on the question of debating Mr. Laframboise's...the appealability of your decision.
I am in your hands procedurally as to where we go here from now. How do we actually move forward and deal with this question of appealing your ruling on the admissibility or inadmissibility of this amendment?
:
Mr. Chair, I think we have reached a reasonable compromise with some of the other members, and I'm wondering if instead of having Mr. Laframboise move that motion, I could read into the record what I believe to be an agreement among at least some of the members, which would be satisfactory, on clause 95.1.
If everyone wants to look at the government's proposed consolidation of amendments, “When constructing or operating a railway, a railway company will cause as little noise or vibrations as possible, taking into account”, and then without going on, Mr. Chair, the balance of (a), (b), (c), and (d) would be the same.
So it would read:
95.1 When constructing or operating a railway, a railway company will cause as little noise or vibration as possible, taking into account
In fact I would change that to read “and/or vibrations” instead of just “or vibrations”.
Having talked to the drafters, Mr. Clerk, I would substitute “and” for the word “or”.
So it would read:
When constructing or operating a railway, a railway company will cause as little noise and vibration as possible, taking into account
And then (a) through (d) would remain consistent.
I'd like to pick up on L-3.3, then, Mr. Chair, if I could. I think it would be interesting if we could marry the new wording put forward by Mr. Jean, where he says, “When constructing or operating a railway, a railway company must cause as little noise and/or vibration as possible”.
I'm proposing that we consider adding to that sentence the following:
When constructing or operating a railway, a railway company must cause as little noise and/or vibration as possible for human health, as determined by reference to current scientific research and relevant national and international standards.
Then you could simply add, “It must further take into account”, and you would follow with paragraphs (a), (b), (c), and (d).
I'm proposing that, Mr. Chair, because I am concerned about the breadth of what constitutes an operational requirement under paragraph 95.1(b). It isn't defined. Does that constitute economic operational requirements? Does it constitute engineering operational requirements? Does it constitute passenger or cargo ridership operational requirements? Does it constitute gross income operational requirements? What does this mean?
I wanted to pick up on two things. One was the six or eight witnesses who came to committee and presented briefs saying this was a problematic area for us, which is why we're dealing with it.
Secondly, I want to refer back to the agreement between the Federation of Canadian Municipalities and the Railway Association of Canada. An MOU, Mr. Chair, was struck between those parties. It was long in its working out and was detailed in its scope. For those of you who may remember having read it, it does set out very specific decibel level tests on the question of noise in and around railyards. It goes as far as saying I think that if you're in your living room at nighttime and your windows are closed, there cannot be precisely more than 37 decibels of noise.
I think it would help Canadian citizens to have a higher level of comfort, in that the tests that will be used to identify what is “as little noise and/or vibration as possible” will be informed with actual scientific criteria, as well as being balanced against
(a) its obligations under sections 113 and 114, if applicable;
(b) its operational requirements;
(c) the area where the construction or operation takes place; and
(d) the potential impact on persons residing in properties adjacent to the railway.
I don't know if anybody remembers when I put this question to the Railway Association of Canada, but the answer was that it wasn't required and that the committee and legislators should not try to go further into the details in terms of how we would measure noise or how we would test for noise.
I think we could actually marry L-3.3 with the proposal put by Mr. Jean, which embraces much of what Mr. Laframboise has suggested in terms of embracing the question of vibration. That's my suggestion, Mr. Chair.
:
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.”
:
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.
:
No. I'll tell you what operations mean. You didn't ask me the question. I'm the railway expert.
Operational requirements does not refer to finances. Operational requirements means what a railway needs to do to conduct its operations.
A railway must hook cars onto a locomotive. That involves switching from one train to another. That causes shunting noises, which we heard a lot about. A railway must move those cars along the track. You heard that there are very long trains, often now two to three kilometres in length. That's part of railway operations.
A railway does what is called “humping” in the industry. That happens at a yard, and it's when the cars are sorted onto the actual trains. Those cars are taken down a hill and the cars are sorted onto the proper trains. That's rail operations.
Railway operations also means inspecting the train before the train leaves. Often before the train leaves or when the train consist is being made, the locomotive is operating and it's idling. So there's a potential idling noise, a potential vibration noise. But once that train is set up, the railways are obligated, by law, by federal railway safety law, to inspect that whole train before that train leaves the yard. That, too, is part of railway operations.
To categorize it very broadly, anything that involves the movement of a train from the point of origin, where it collects its goods, to the point of destination, where it delivers the goods, are all operational requirements. It has nothing to do with the financial bottom line. Yes, that's how they earn their income, but the financial requirements are separate. I think we saw when we were talking about the airlines, when we were talking about reporting, that the two are different. This is what a railway has to do to carry out its business. All those activities we heard about, yes, they're part of railway operations, and that is why that is in here. They must try to limit the noise or the unreasonable noise. I think we've agreed now to limit it to the minimum. But all those are operational requirements. They can't function without doing those activities.
:
I would think they would have a very difficult time if the agency could demonstrate that in fact there are other technologies and that they could change the way they're operating. Let them make their case, but the agency has that same opportunity to argue that case, so it's something the agency will follow up on.
We heard about when shunting is happening. They can locate the shunting operations. That's been done in the past. Somebody mentioned earlier about the agency looking at the latest state-of-the-art technology, state-of-the-art-practices. That's exactly the flexibility we want to provide to the agency, because what is operational today will change in a year from now.
There are new standards for locomotives coming out. There are Green Goat locomotives, which are yard locomotives. They're much quieter. They're more fuel efficient. Maybe the agency can go in and say that rather than using your regular locomotive, use a Green Goat locomotive. It's more efficient, makes less noise, and does the same kind of activity.
Let's preserve that flexibility for the agency.
:
I would say it would, and I'm going to read something to you. You heard from witnesses, I believe, who said that the WHO has regulations. The WHO does not have regulations. I'm going to read from a document. I'll read exactly what it says:
WHO has responded in two main ways: by developing and promoting the concept of noise management, and by drawing up community noise guidelines.
Not regulations, guidelines.
I think you heard from some of the witnesses that they would prefer the noise to be somewhere from 50 to 55 decibels. I'm going to quote you the number from the WHO guidelines in terms of the category called “industrial, commercial, and traffic areas”. The decibel levels that are allowed here are 70 decibels for up to 24 hours of operation a day.
That's the guideline the WHO has.
In terms of regulation, I'm going to quote you from the European Union regulations and compare them to the U.S. regulations. You should know that Canadian operational requirements are consistent with U.S. operational requirements, because our industry is integrated.
For a stationary noise, for an idling locomotive--stationary, not moving--for diesel locomotives, which are what we operate here in Canada and the U.S., and in Europe, by the way, the European noise threshold is 75 decibels. In the United States it's 70 decibels.
For a moving locomotive, a locomotive en route, and again, this is for a diesel locomotive, the level allowed in Europe is 85 decibels. In North America, it ranges between 88 and 93 decibels, depending on the age of the locomotive.
I just told you a minute ago that they're in the process of designing new locomotives. Those are going to be coming into effect in the next couple of years. So again, these regulations are going to be updated in North America to take that into account--state-of-the-art technology.
If we start putting decibel levels into the legislation, rather than saying let the agency determine—
:
Okay. Then I don't know the appropriate way to deal with it, but for consistency with Mr. Jean's amendment, which is on proposed section 95.1--and I won't reread it, but the part about “must cause as little noise and/or vibration”--in proposed paragraph 95.2(b) it should say “the collaborative resolution of noise and/or vibration complaints”.
In proposed subsection 95.3(1), the last three sentences should say, “any changes in its railway construction or operation that the Agency considers reasonable to”--and at this point it should say--“cause as little noise and/or vibration as possible, taking into account the factors referred to in that section”. That flows through all three.
I don't know if that needs to be a subsequent amendment or an amendment to the amendment, however you wish to deal with that, but it is the continuity through the three portions.
Otherwise what you've done is you've gone back to unreasonable noise and not talked about vibration in proposed sections 95.2 and/or 95.3.
I will move that amendment. Given the hour, I won't take a lot of time to speak to it. However, it's very clear from all the testimony we've had over the course of this fall that those who live in urban areas are very concerned about the noise aspect. I think it's fair to say as well that they have tried to work with the railways, as we heard from Mr. Allen and Mr. Wright from New Westminster. They've tried to work with the railways and they've tried to have elements in place that would preclude the kinds of activities that create a lot of noise in urban areas, such as decoupling, coupling, and shunting.
The railways know. They've made commitments to try not to do shunting, coupling, and decoupling in the middle of the night, but they haven't kept to the commitments that they made, so the problem here is the choice we've faced all along: there's the issue of activity and there's the issue of decibel levels.
Ms. Borges has quite rightly pointed out that putting decibel levels into the legislation may not be appropriate. We know that whether or not the agency develops regulation around the types of equipment that can be used, inevitably we're talking about years before the railway companies would actually incorporate that new technology, so the only real opportunity for us to provide some immediate relief to those high-density urban residential areas located adjacent to shunting yards is to ensure that we have some restriction on activity.
That's what's proposed here--that we provide some restriction on activity in high-density urban environments. In the case of greater Vancouver, for example, it would mean there would be more activity in the Port Mann shunting yards and less activity in the Westminster Quay shunting yards.
Now, one might agree or disagree with the actual time allocated here, or agree or disagree with whether 300 metres or 100 metres is reasonable--those could be subject to amendment--but the principle is to restrict some activity. The railways already have implicitly acknowledged that it is a problem by making these agreements to not do these activities in the middle of the night. That's the objective of the amendment--to not have people wakened up at 11 p.m. or 3 a.m. or 4 a.m. by shunting or coupling or decoupling, or by the idling of diesel engines.
I'd like the committee to look at subamendments if they're concerned about the particular time period envisaged or what the distance should be. The principle of restricting those activities is sound, and it would help those high-density urban areas that are subject to a lot of noise right now at night. We can't expect that the agency, over the long term, would be able to deal with each of these individually; we know that inevitably it would be a restriction on activity. That's why I'm proposing this amendment.
I'm sympathetic to Mr. Julian's motion, but there are two things. First, I think we've all received a letter from SkyTrain and West Coast Express explaining the implications on their passenger rail service. I note specifically that proposed section 95.4 indicates that proposed sections 95.1 to 95.3 would apply, with any modifications that are necessary, to public passenger service providers.
With the changes that are being proposed to proposed section 95.1--and then I suggest proposed sections 95.2 and 95.3 for consistency--we are addressing noise and vibration now, so let's see if the system works the proper way, without going a step further. If we find from experience that it is not addressing it, then we can come back at some point and take a further look at this, either with the government's introduction or a private member's bill.
I think it would be very popular, if there is still the same level of complaints. But if the system allows for it now, we should pass what is being proposed and not pass what's being proposed in NDP-13 at this time.
:
Mr. Chairman, what we wanted to do with amendment BQ-8, was to broaden the definition of a suburban transit company.
Now, the government wants us to come back to the definition in clause 28 of the bill that defines a suburban transit authority without limiting this solely to census metropolitan areas. The problem is that there are suburban transit systems that go beyond the administrative areas determined by the Canadian government. Thus, we want to allow these companies, that might cover territory bigger than a census metropolitan area, to do this. This would also allow regional companies, which do not operate in urban regions, to use public transit and benefit from this legislation.
I think that the government's position is the same as ours. We concur with the propositions that were tabled. As you see, if we add to clause 28 the following words: "in an urban region or on territory served by a suburban transit authority", it could apply to other companies that have services elsewhere than in census metropolitan areas.