REVIEW OF THE RAILWAY SAFETY ACT CONSULTATION GUIDANCE DOCUMENT

Transcription

1 REVIEW OF THE RAILWAY SAFETY ACT CONSULTATION GUIDANCE DOCUMENT March 2007

2 Please direct your inquiries, comments or orders to: Railway Safety Act Review Secretariat 180 Elgin Street, Suite 901 Ottawa, Ontario K2P 2K3 Telephone: Facsimile: Web site:

3 MESSAGE FROM THE ADVISORY PANEL The Advisory Panel is pleased to undertake this important review of railway safety for the Minister of Transport, Infrastructure and Communities. We have been asked to assess the working and overall efficiency of the Railway Safety Act to improve railway safety, including possible amendments to the Act. The objective of the review is to further improve railway safety in Canada and promote a safety culture within the railway industry, while preserving and strengthening the vital role this industry plays in the Canadian economy. This Consultation Guidance Document has been published to assist stakeholders to focus on what we believe are the key issues that need to be addressed. At the same time, we recognize that there may be additional issues not mentioned that stakeholders may wish to bring to our attention. We invite you to consider the contents of this document and we look forward to receiving your views and submissions to help us in our mandate. Please refer to the end of the document for information about how to make a submission. The Honourable Doug Lewis (Chair) Pierre-André Côté Martin Lacombe Gary Moser Consultation Guidance Document i

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5 TAB LE OF CONTENTS Introduction... 1 Background on Railway Safety in Canada... 1 Overview of Railway Transportation in Canada... 1 Overview of the Railway Safety Act... 2 Need for a Review of the Railway Safety Act... 4 Mandate of the Railway Safety Act Review Advisory Panel... 5 Key Issues to be Explored Efficiency and Effectiveness of the Railway Safety Act Roles and responsibilities Safety Management Systems Monitoring, audit, inspection and enforcement Human factors, safety awareness and public information Modal competition Provisions and Operation of the Railway Safety Act Enforcement powers Baseline safety requirements Rule-making, and consistency of rule application Ministerial authority and delegation Defining engineering requirements Establishing a complete legislative authority Environmental Concerns with respect to Railway Transportation and Accidents Protection of the environment Responding in an emergency Interface with Non-railway Users Crossings Trespassing and vandalism Related Railway Safety Issues Collection and dissemination of railway safety data Economic trends Advanced technologies and their use Observations on other important railway safety issues How to Make a Submission Appendices A Biographies of Advisory Panel Members B Terms of Reference: Railway Safety Act Review Consultation Guidance Document iii

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7 INTRODUCTION On February 20, 2007, the Minister of Transport, Infrastructure and Communities announced the appointment of the four-member Advisory Panel to assist him in conducting a review of the Railway Safety Act (RSA). The Panel will submit a report of its findings and recommendations to the Minister in the fall of The Railway Safety Act came into force in 1989, replacing the Railway Act. It was part of a suite of legislative changes that generally deregulated Canada s transportation networks and services, and separated regulation of safety from economic regulation (and from accident investigation). The RSA called for a review of the Act after five years, which was undertaken in Following a further internal review, the Act was amended in The RSA gives Transport Canada responsibility to oversee railway safety. It establishes a regime for the regulation of railway safety in Canada founded on the principles that railway companies must be responsible and accountable for the safety of operations, and that the regulator must have the power to protect public and employee safety, and the environment. The Act provides the regulatory framework for railway safety, security, and some of the environmental impacts of railway operations in Canada. Over the last few years, there have been several dramatic derailments notably in British Columbia, Alberta and Quebec resulting in serious injuries and fatalities, significant environmental damage, and negative economic effects. These derailments have created an interest in reviewing Canada s railway safety system to determine if improvements can be made. This document provides background and summary information to stakeholders on railway safety in Canada, and the mandate of the Advisory Panel. Questions are also provided to help stakeholders focus on key issues the Panel is interested in exploring. B ACK GROUND ON RAILWAY SAFETY IN CANADA Overview of Railway Transportation in Canada 2 Rail transportation is vital to all of Canada s economic activity including its trading relationship with the United States and the rest of the world. In 2005, the rail industry generated $9.9 billion in revenues. Canada has one of the largest rail networks in the world with 48,000 kilometres of track and almost 50,000 railway crossings (public and private). Over 300 million tonnes of cargo is moved annually. Railways directly employ more than 35,000 people in Canada (about half the number they employed in 1990), and their suppliers and shippers many more. 1 On Track: The Future of Railway Safety in Canada, Report of the Railway Safety Act Review Committee, December Sources: Railway Association of Canada (RAC) Railway Trends 2006; Transport Canada Transportation in Canada 2005 Annual Report. Consultation Guidance Document 1

8 The structure of Canada s railway industry has changed significantly since the early 1990s. Canadian National Railway (CN) and Canadian Pacific Railway (CPR) are still the dominant carriers; however, they operate about 75 per cent of the total domestic rail network instead of the 90 per cent they operated in the 1990s. Many low-density lines have been transferred to short line operators, which provide feeder service to the CN and CPR networks. Both CN and CPR have significant infrastructure and operations in the United States, and north-south traffic has grown considerably over the last twenty years. More recently, rapid economic expansion in China and other Asian countries has resulted in significant growth in traffic through west coast ports, especially containers. Short line railways began modestly in Canada in the late 1980s and grew slowly during the early 1990s. After the Canada Transportation Act 1996 came into force, their number and activity expanded, and more than 40 short line railways are now operating in Canada, over some 16,000 kilometres of track. Short line revenues grew 11.6 per cent per year over the period , from $95 million to $444 million. About 25 per cent of all carloads shipped originate from short line railways. Furthermore, many significant industrial shippers have spur rail lines linking their production sites to CN or CPR track. Approximately 9,900 kilometres of rail line were discontinued between 1990 and 2005, most of it divided fairly equally between CN and CPR. The main freight products carried by Canadian railways are grain, coal and coke, forest products, ores and mine products, fertilizer materials, industrial products, and intermodal containers. Railway companies compete to move freight with long-haul trucking and with coastal and Great Lakes shipping. Canadian railways and ports compete with US corridors for some international traffic. Rail freight rates in Canada have been relatively stable since 1999, and are among the lowest in the world. VIA Rail continues to dominate the intercity rail passenger sector; it accounted for 95 per cent of intercity passengers carried in Commuter rail services in urban areas have increased substantially in recent years the total number of passengers carried by commuter systems in Ontario, Quebec and British Columbia grew from 41 million to 58.2 million from 1997 to Tourist and recreational railways offer popular services in many parts of Canada, including targeted tourist excursions provided by VIA Rail. Overview of the Railway Safety Act The Railway Safety Act requires Transport Canada to promote and regulate the safety of railway operations by federally regulated railway companies. Transport Canada also oversees provincially regulated railway companies applying federal regulatory requirements (for example, when operating on a federally chartered host railway or subject to a federalprovincial agreement). Transport Canada also regulates certain activities of other relevant bodies, such as road authorities (which may include a municipality) and utility companies, to promote safe railway operations. 2 Review of the Railway Safety Act

9 The objectives of the RSA are to: promote and provide for the safety of the public and personnel, and the protection of property and the environment, in the operation of railways; encourage the collaboration and participation of interested parties in improving railway safety; recognize the responsibility of railway companies in ensuring the safety of their operations; and facilitate a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety. The most recent (1999) amendments provided authority to require railways to implement Safety Management Systems, allowed for greater involvement on the part of a relevant association or organization (as defined in the RSA) in the rule-making process, set out a safety framework for minimizing disruption caused by train whistles in communities, strengthened and clarified federal powers at road-rail (grade) crossings, strengthened and clarified the powers of Railway Safety Inspectors, and established environmental protection authority to regulate railway emissions. The RSA, as amended, has six parts: Part I: CONSTRUCTION OR ALTERATION OF RAILWAY WORKS The Minister of Transport has the authority to regulate and approve the safety of railway structures, with sufficient flexibility for railway companies to carry out routine construction with a minimum of delay. The Minister is also given the authority to make grants for crossings, grade separations and special safety projects. The Canadian Transportation Agency (CTA) has the role of resolving disputes over the apportionment of costs, for example, between the proponent of the work and where more than one party, such as an adjacent landowner, may benefit directly from a railway work. Part II: OPERATION AND MAINTENANCE OF RAILWAY WORKS AND EQUIPMENT Regulations and rules for railway operation and maintenance may be established. There are also provisions regarding cessation of whistling at crossings. Safety regulations may be made by the government covering the operation or maintenance of railways in general, such as tracks, bridges, culverts, signal systems and crossing works, as well as the design, operation, and maintenance of railway equipment. The government may also establish regulations related to employment of persons in designated positions critical to safe railway operations and to the security of railway transportation. A railway company may be required by the Minister to formulate safety rules also covering the operation and maintenance of railways and rail equipment, or a company may formulate rules of its own initiative. All rules are subject to review and approval by the Minister. Consultation Guidance Document 3

10 Part III: NON-RAILWAY OPERATIONS AFFECTING RAILWAY SAFETY This part provides the powers to ensure that railway operations are not endangered by operations on land adjacent to a right-of-way. It also includes provisions regarding trespassing and the right-of-way of trains at crossings. Again, any affected party can refer disagreements to the CTA. Regulations may deal, for example, with: construction of structures, mining operations, and drainage systems, storage of flammable materials, removal of trees and bush obstructing the field of view, removal of weeds and the use of alternatives to chemical pesticides, restricting or preventing access to the land on which a railway line is situated by people, vehicles, or animals, construction, alteration and maintenance of roads, control of vehicular and pedestrian traffic on road approaches to road crossings, any other activity that could constitute a threat to safe railway operations. Part IV: ADMINISTRATION AND ENFORCEMENT Part IV contains the provisions necessary to enforce the requirements of the RSA. It covers the designation and authority of Railway Safety Inspectors and security Screening Officers, Ministerial Orders, including orders for the removal of works, Ministerial emergency directives, rules of court, medical reporting, inquiries, and security measures, 3 and sets out offences and penalties. Part V: MISCELLANEOUS PROVISIONS This part provides for delegation of powers, the authority to regulate the development and implementation of Safety Management Systems, the authority to regulate the release of pollutants, and a number of miscellaneous provisions. Part VI: CONSEQUENTIAL AMENDMENTS TO OTHER ACTS Need for a Review of the Railway Safety Act No matter what the causes, accidents and incidents involving loss of life and injuries, and damage to the environment and to property are always reasons for concern. Some examples of recent accidents of various types are outlined below. The serious impacts of such accidents underscore the need to seek views on how to improve railway safety. On January 7, 2007, 24 cars of a 121-car freight train derailed in a residential community at Montmagny, Quebec, dumping parts of their loads, but without spilling dangerous goods. On January 4, 2007, two locomotives derailed at a rock slide near Lytton, British Columbia. One of them plunged 75 metres into the Fraser River canyon. 3 The security-related provisions of the Railway Safety Act were added in They are not part of the Mandate of the Advisory Panel, which is focusing on safety issues. 4 Review of the Railway Safety Act

11 On August 5, 2005, a train derailed near Squamish, British Columbia, and a tank car of caustic soda fell into the Cheakamus River, releasing the full contents; the resulting environmental damage killed over 500,000 fish and other organisms in the river. On August 3, 2005, 43 cars of a freight train derailed at Lake Wabamun, Alberta, spilling bunker fuel oil and other toxic chemicals into the lake. On February 17, 2005, two young pedestrians were struck by a freight train at a public crossing in Brockville, Ontario. One pedestrian was fatally injured, and the second received serious injuries; the two pedestrians had stepped into the path of an eastward train after a westward train had passed. On January 14, 2004, a freight train derailed near an overpass at Whitby, Ontario, and rail car platforms and containers fell onto the roadway below; a car was struck and its two occupants were fatally injured. On May 14, 2003, two locomotives and five cars carrying lumber derailed on a bridge near McBride, British Columbia. In the fire that ensued, the two crew members were fatally injured, and the bridge, the two locomotives, the cars and their contents were destroyed. On February 21, 2003, 21 freight cars, seven containing flammable liquids, derailed at Melrose, Ontario, and some collided with another train. Tank car shells were breached and there was an explosion; about 300 nearby residents were evacuated as a safety precaution. On April 12, 2001, a passenger train with two locomotives and 14 cars derailed at Stewiacke, Nova Scotia. The switch lock had been tampered with. Nine of the cars derailed and a farm supply building was destroyed; 22 of the 132 persons on board the train were taken to hospital, nine of them seriously injured; and four occupants of the building escaped uninjured before the impact. Rail accident rates showed a steady decline from 1996 to 2002, from approximately 1,300 to 985 accidents reported to the Transportation Safety Board of Canada (TSB). However, since 2002, the trend has begun to rise again (from 985 to 1,142 in 2006). According to the TSB, derailments account for over 50 per cent of all reported accidents for each year, followed by crossing accidents and train collisions. Fatalities mainly occur at road-rail crossings, or as a result of trespassing. In 1996, just over 100 fatalities of this type occurred in Canada. The number of deaths declined to about 70 by 2003, but rose again to just under 100 per year for the period. In 2005 (123) and 2006 (86), incidents involving discharge of dangerous goods show significant decreases from the average of 153 per year. Most leaks are small in quantity. Nevertheless, a few major spills in rivers and lakes in recent years have been very detrimental to the environment and to nearby property. Consultation Guidance Document 5

12 MANDATE OF THE RAILWAY SAFETY ACT REVIEW ADVISORY PANEL The Advisory Panel will be the Minister s principal source of advice on the review of the working and overall efficiency of the Railway Safety Act to further improve railway safety, including possible amendments to the Act. The role of the Advisory Panel is to conduct independent study and analysis, to undertake consultations, and to prepare a report for the Minister with findings and recommendations. The Panel will consult a wide range of stakeholders, including the public, railway companies and their industry associations, railway company employees and their unions, railway customers, including shippers and travellers, provincial and territorial authorities, municipalities, aboriginal and environmental groups, as well as Transport Canada and other federal government departments and agencies. The Panel will hold meetings across Canada where individuals and groups can present their views. It will be supported by a Secretariat established within Transport Canada. Biographies of the four members of the Panel are provided in Appendix A. The text of the Terms of Reference for the Railway Safety Act Review Advisory Panel may be found in Appendix B to this document. K EY ISSUES TO BE E XPLORED The four-member Advisory Panel will review and examine: 1. the efficiency and effectiveness of the legislative/regulatory framework established under the Railway Safety Act; 2. the provisions and operation of the Act; 3. the environmental concerns with respect to railway transportation and accidents; 4. the interface with non-railway users; and 5. related railway safety issues. The Advisory Panel will prepare a report for the Minister of Transport, Infrastructure and Communities that includes its findings and recommendations to further improve railway safety, including possible amendments to the Railway Safety Act, and on related railway safety issues falling within the scope of the Terms of Reference. The following list of key questions is designed to help focus input from stakeholders. It is not an exhaustive list and does not in any way restrict the possibility of other issues coming forward. 6 Review of the Railway Safety Act

13 1. Efficiency and Effectiveness of the Railway Safety Act 1.1 Roles and responsibilities The legislative and regulatory framework that provides for railway safety in Canada, including the Railway Safety Act, sets out roles for several types of organizations and agencies, including Transport Canada (TC), railway companies, the Canadian Transportation Agency (CTA), the Transportation Safety Board (TSB), and others Are the roles, responsibilities and authorities for railway safety in Canada clear? Is the current accountability structure appropriate? Should any changes to these roles and responsibilities be considered to further improve railway safety in Canada? Are all the participants fulfilling their roles and responsibilities? 1.2 Safety Management Systems The RSA seeks to promote and provide for safety in the operation of railways using a modern, flexible and efficient regulatory scheme adapted to the current context of the rail sector. A Safety Management System (SMS) is one tool to achieve this objective, and the 1999 amendments to the Act gave authority to implement this approach. An SMS is defined as a formal framework for integrating safety into day-to-day railway operations; it includes safety goals and performance targets, risk assessment, responsibilities and authorities, rules and procedures, and monitoring and evaluation processes Has the formal framework for integrating safety into day-to-day railway operations SMS been put in place at all railway companies, and how is it working in practice? Are the roles, responsibilities and authorities for SMS clear of railway companies, of Transport Canada? of others who are part of the railway safety system? Is the current SMS approach to accountability working for the owners and employees of railway companies? for their customers (shippers and travellers)? for those who live near railway lines? for Canadians? Are safety goals and performance targets adequately defined? Should any aspects related to railway safety be spelled out more clearly that is, be more prescriptive? Is the balance between performance/results-based and prescriptive regulation appropriate? Has the implementation of SMS had the desired effect on the traditional regulatory framework? Consultation Guidance Document 7

14 1.2.7 Is there a need to tailor SMS to a company s size and nature of operations? 1.3 Monitoring, audit, inspection and enforcement The modern, flexible and efficient regulatory scheme of the RSA is intended to be better coordinated and more transparent, and also forward-thinking and accountable to the citizens it serves. For example, compliance should be facilitated by regulatory requirements that are clear and readily enforceable Does Transport Canada carry out its responsibility to monitor and inspect rail operations related to safety effectively? Is auditing of rail operations related to safety carried out effectively? by Transport Canada? by railway companies? Does Transport Canada respond effectively to non-compliance, and to threats to, and concerns with, safe railway operations? Do the companies themselves provide for quality assurance and effective supervision of employees? effective monitoring and inspection of track and equipment? Is monitoring and inspection conducted using automated processes (technology) and/or directly by staff? is the balance right? 1.4 Human factors, safety awareness and public information The railway safety system is intended to develop procedures that call for specific behaviour in different situations. However, systems cannot cover all types of situations, and individuals must sometimes rely on their own judgment and reflexes Are employees appropriately qualified and trained to carry out their duties safely? to respond effectively to emergencies? Are appropriate employee support activities provided, such as proficiency evaluation systems, mentoring and coaching? Are employee fatigue, hours of service and overtime concerns for railway safety? Is there a need to regulate testing for use of substances like alcohol and drugs? Are there any labour relations issues that might affect railway safety? Are enough resources devoted to public information and awareness, especially at non-rail interfaces where a significant share of fatalities and serious injuries occur? 8 Review of the Railway Safety Act

15 1.5 Modal competition The regulatory scheme of the RSA is intended to be transparent, and accountable to the citizens it serves, but also to be neutral between modes of transport it should not distort market efficiency by making it easier or more difficult to achieve safe operations in the rail sector than in competing transportation sectors Are safety requirements more onerous for rail than for trucking? air or marine transportation? are they less onerous? Are costs to railway companies of complying with railway safety requirements too high compared with costs borne by other modes? too low? Is railway safety regulation contributing to congestion at terminals, line-points, or at intermodal exchanges? at ports? Are there jurisdictional issues that may affect competitiveness? 2. Provisions and Operation of the Railway Safety Act 2.1 Enforcement powers Transport Canada can issue orders in various circumstances in accordance with the provisions of the RSA, and such orders could ultimately be enforced via prosecution in courts. There is no provision for Transport Canada to issue penalties through administrative action for infractions in the rail sector, as it may in the aviation and marine sectors Have problems arisen with respect to the enforcement powers associated with the RSA? What kind of enforcement powers should be available to Transport Canada? What kind of penalties/incentives are most effective to ensure compliance? Should there be a range of enforcement penalties/incentives? If so, how should penalties/incentives be structured for example, for minor versus major infractions? for small versus large companies? related to the value of the damage caused? for repetitions of the same infraction? What form of administrative review or recourse is appropriate for an entity to contest an alleged infraction? Consultation Guidance Document 9

16 2.2 Baseline safety requirements The RSA does not specify what minimum safety requirements railway companies should meet before they start operating. The Canadian Transportation Agency (CTA), an independent agency at arm s-length from the Minister of Transport, issues a Certificate of Fitness when it is satisfied that a company proposing to construct or operate a railway under federal jurisdiction has adequate liability insurance. Certified companies are then monitored by the CTA for continued compliance. Under the RSA, a company must make an initial submission to the Minister that contains key elements of a full SMS at least 60 days before it begins operations Should all new railway companies demonstrate that they meet specified baseline safety requirements before commencing operations, in addition to the Certificate of Fitness process? If so, what factors should be considered to develop baseline safety requirements? Should baseline safety requirements be in the form of regulations, or rules, or a safety management plan? 2.3 Rule-making, and consistency of rule application Safety rules are developed by a railway company either on its own initiative, or following an order from the Minister (however, all rules must be approved by the Minister and have the force of law). Rules can apply to railway companies individually, unlike regulations established by the government, which apply to all equally, although the companies are increasingly working through their industry association to develop rules that apply industry-wide. A rule established for one company does not necessarily establish a precedent for other companies and, although the Minister can order a company to formulate rules for approval, there is no blanket requirement to have rules; however, the RSA states that, in considering whether to approve a rule, the Minister shall to the extent that it is reasonable and practicable to do so, ensure that those rules are uniform [with similar rules] Is the current rule-making process in keeping with the objectives of the RSA? Does the use of rules rather than regulations affect the application of consistent safety practices from one company to another? If so, does this cause safety issues? Are there circumstances where flexibility is required in the rule development process to provide for company-specific conditions or characteristics? Does the Minister have adequate authority to ensure uniformity of rules dealing with similar matters for different companies? 4 RSA section Review of the Railway Safety Act

17 2.3.5 How does the use of rules affect compliance and enforcement across Canada? Are there safety issues related to applications for exemptions or variations to rules? Does the use of rules rather than regulations provide for effective procedural fairness and transparency? What should Transport Canada s role be in the rule development process? Are improvements possible with a different level of participation in the development process? Are there issues related to consultation during the rule development process? 2.4 Ministerial authority and delegation The Minister of Transport has authority to regulate and take administrative action in several specified areas of railway safety. Some specific administrative powers are delegated directly to Transport Canada inspectors under Part IV of the Act Should the Minister of Transport be responsible for all matters that may arise that are related to the safe operation of railways in federal jurisdiction? Does the current approach affect compliance and enforcement for federally regulated railways? Does the delegation of certain functions directly to railway safety inspectors affect oversight and accountability for those functions? If so, does this create problems? How does the current approach affect consistent enforcement of various aspects of railway safety? 2.5 Defining engineering requirements The involvement of licensed professional engineers is required in the design, construction, evaluation and alteration of all engineering work relating to railway works. Such works include utility crossings (such as power lines and pipelines), road approaches to rail lines (which are the responsibility of the road authority), and railway infrastructure, such as tracks, signals and bridges. Professional engineers have a duty to protect the public health, safety and welfare where engineering work is involved. The RSA prescribes that all the engineering work relating to railway works shall be done in accordance with sound engineering principles, 6 and that a professional engineer shall take responsibility for the engineering work. The phrase sound engineering principles is not defined in the Act. 5 Especially RSA sections 28 (Inspector s Powers), and 31 (Orders concerning use of railway works or equipment). 6 RSA Section 11 (Engineering work). Consultation Guidance Document 11

18 2.5.1 Have issues arisen in determining what sound engineering principles are required? Is there a need to define sound engineering principles in the RSA? Is it possible to define sound engineering principles? Are there other factors which should be taken into consideration when establishing engineering requirements? 2.6 Establishing a complete legislative authority Under the RSA, the term railway company applies only to those with Certificates of Fitness issued by the CTA, an independent agency at arm s-length from the Minister of Transport, on the basis of economic criteria. Some persons and railways that may otherwise fall within federal jurisdiction under the Constitution Act, 7 but which are not operated by a company with a CTA certificate, may not be regulated under the RSA What mechanism will best assure an effective and consistent regulatory framework for railways under federal jurisdiction as described in the Constitution Act 1867? Does the current approach lead to inconsistent compliance and enforcement for federally regulated railways, and those which are not subject to federal jurisdiction, but whose operations host or use federally regulated companies, or share their infrastructure? 3. Environmental Concerns with respect to Railway Transportation and Accidents The RSA provides for the government to make regulations governing the release of pollutants into the environment from the operation of railway equipment. The Transportation of Dangerous Goods Act 1992, governs handling, storage and carriage of dangerous goods across Canada and is also administered by Transport Canada. Environment Canada is responsible for many aspects of environmental protection. Provinces, territories and municipalities also have key roles in protecting the environment, and responding to emergencies, as well as clean-up and restoration. 3.1 Protection of the environment Are the roles, responsibilities and authorities for protecting the environment clear in the context of railway operations and works? of railway companies? of Transport Canada? of other agencies and organizations? Are there improvements that can be made to the RSA to clarify environmental responsibilities? 7 Constitution Act, 1867, sections (a) and (c). 12 Review of the Railway Safety Act

19 3.2 Responding in an emergency Are planning processes for responding to emergencies that might involve damage to the environment effective and efficient? Is the capacity to respond available? How can responding to emergencies be made more effective and efficient? 4. Interface with Non-railway Users 4.1 Crossings How are existing strategies to make public and private crossings safer working? What additional strategies could be adopted to make public and private crossings safer? What would be the impact on railway companies? on nearby communities? How should public awareness (including warnings and general education) be addressed? How should public acceptance of warnings/alerts (including train whistling) be addressed? Have the communities involved been consulted effectively? 4.2 Trespassing and vandalism What strategies could be adopted to reduce or eliminate trespassing and vandalism on railway rights-of-way, and from non-rail properties (including bridges)? Is there sufficient understanding of the behaviours that lead to trespassing and vandalism? Are there specific penalties/incentives that might help to reduce or eliminate trespassing and vandalism? 5. Related Railway Safety Issues The Panel is interested in other issues that may improve or otherwise affect railway safety, and future developments. 5.1 Collection and dissemination of railway safety data Is data related to railway safety collected in an efficient manner? Could it be collected, reported and disseminated more effectively? Is there any duplication of effort, or are there gaps in data collection and dissemination? Consultation Guidance Document 13

20 5.1.2 Is data currently collected sufficient to assess rail safety performance effectively? What additional information could be collected and analyzed in support of the SMS approach? Is available data provided to potential users and to the public effectively, to support the RSA s objectives to promote and encourage railway safety in Canada? 5.2 Economic trends What will be the impact on railway safety of projected rail freight and passenger traffic volumes and patterns? How might social and economic trends affect future railway use, or use of competing modes? How might this affect safety of persons, property, the environment? What solutions will be necessary and available to deal with future industry changes? What is the impact of adopting an SMS approach on rail industry operations, relative to competing transportation modes? Is there adequate investment related to railway safety in new and renewed track and equipment? 5.3 Advanced technologies and their use What new or emerging technologies might be adopted to improve safety on and near railways for equipment and infrastructure? for warnings at crossings and to the public? What factors encourage or hinder adoption of such technologies? 5.4 Observations on other important railway safety issues In addition to the questions provided above, to which the Advisory Panel is seeking input, the Panel is interested in any other matters related to railway safety within the scope of the Terms of Reference that may be brought to its attention. 14 Review of the Railway Safety Act

21 HOW TO MAK E A SUB MISSION A website for the Railway Safety Act Review has been established at: Interested persons are encouraged to refer to the website for information on the progress of the review. Full details on the schedule of public consultations will be published on the website, along with the timing for submissions and how to register. The website will also specify the final deadline for making a written submission. All submissions will be published on the website as they are received, except for information that the originator identifies as being commercially sensitive. Stakeholders are invited to provide written submissions to the Panel either electronically to this website, or by mail to the Railway Safety Act Review Secretariat at the address listed below. Railway Safety Act Review Secretariat 180 Elgin Street, Suite 901 Ottawa, Ontario K2P 2K3 RailwaySafetyActReview@tc.gc.ca Consultation Guidance Document 15

22 A PPENDIX A BIOGRAP HIES OF ADVISORY PANEL MEMB ERS The Honourable Doug Lewis (Chair) is a Chartered Accountant and lawyer. Mr. Lewis served as the Member of Parliament for the riding of Simcoe North (Ontario) for the period from 1979 to During that time he served as Government House Leader, Attorney General and Minister of Justice, Minister of Transport and Solicitor General. Mr. Lewis currently practices law in Orillia, Ontario. Mr. Pierre-André Côté holds a bachelor in law from the University of Montreal and a post-graduate diploma in public law from the Université de Toulouse. He was Professor of Law at the University of Montreal from 1970 to 2005, and has authored numerous articles and a major treatise on the interpretation of statutes. Mr. Côté is with the firm of Bélanger Sauvé, in Montreal. His fields of expertise include administrative law, judicial review of government actions, and civil rights and freedoms. Mr. Martin Lacombe worked as a professional executive, manager, policy developer and leader in the railway industry in positions ranging from front-line operations supervision, to short line President and CEO capacities. As well as working with CN, VIA Rail, the Canadian Transport Commission, the Railway Association of Canada, and Genesee and Wyoming Railway, Mr. Lacombe has worked in the railway industry in Australia and Brazil. Mr. Gary Moser is the former Chief Executive Officer of the Health Employers Association of British Columbia. He was previously a Deputy Minister in the Provincial Government of British Columbia. He currently operates a private consulting practice focusing on labour relations. The Railway Safety Act Review Advisory Panel. Left to right: Mr. Martin Lacombe, The Honourable Doug Lewis (Chair), Mr. Gary Moser, Mr. Pierre-André Côté 16 Review of the Railway Safety Act

23 A PPENDIX B TERMS OF REFERENCE: RAILWAY SAFETY ACT REVIEW Background The Railway Safety Act, which came into effect in January 1989, was designed to advance rail safety in Canada by giving the Minister of Transport responsibility for rail safety regulation; providing a modern regulatory framework, together with a streamlined regulation development and approval process; and providing railway companies with greater freedom to manage their operations safely and efficiently. Since then, changes have occurred in the railway industry (e.g. there has been an increase in the number of federally regulated railway companies and CN has been privatized) and exceptional productivity gains have been achieved. Since 2002, there has also been an increase in railway accidents and main-track train derailments in Canada. In , derailments have led to fatalities, serious injuries and significant environmental damage in British Columbia, Alberta and Quebec. Concerns have been expressed by private citizens and a number of groups including provincial governments, railway employees, aboriginal and environmental groups with respect to railway safety in Canada. In addition, Transport Canada officials have identified deficiencies with the Act during their day-to-day administration of legislative provisions. Although Transport Canada has taken significant safety enforcement action across Canada over the past years to address these problems, there is a view that the current regulatory framework does not provide the full set of tools to effectively deal with them. There is also a view that the current framework needs to be modernized and better aligned with safety legislation in place for other modes of transport in Canada. Accordingly, the government announced the Railway Safety Act Review to further improve railway safety in Canada and promote a safety culture within the railway industry while preserving and strengthening the vital role this industry plays in the Canadian economy. Consultation Guidance Document 17

24 Process An Advisory Panel of four part-time members appointed by the Minister of Transport, Infrastructure and Communities will conduct independent study and analysis, undertake consultations, and prepare a report with findings and recommendations. The Panel will consult a wide range of stakeholders, including the public, railway companies and their industry associations, railway company employees and their unions, railway customers (e.g. travellers and shippers), provinces and territories, municipalities, aboriginal and environmental groups as well as Transport Canada and other federal government departments and agencies. The Panel will hold meetings across Canada where individuals and groups can present their views and will have a website to accommodate input from the public. To assist those who wish to make a submission, the Panel will prepare a Guidance Document setting out key issues of interest. Scope of the Panel s Work The Panel will prepare a report for the Minister of Transport, Infrastructure and Communities with findings and recommendations to improve railway safety, including possible amendments to the Railway Safety Act. The report is to be submitted by October The Panel will assess the working and overall efficiency of the Railway Safety Act and examine a number of specific issues including: enforcement powers with respect to administrative monetary penalties; baseline safety requirements ensuring that new rail companies are willing and able to meet minimum safety requirements before starting operations in Canada; consistency of rule application given that rules apply to an individual railway company; delegating powers to railway safety inspectors directly, bypassing the Minister entirely; defining engineering requirements based on the phrase sound engineering principles which is undefined within the Railway Safety Act; and establishing a complete legislative authority that applies to railways within Canada s constitutional authority. 18 Review of the Railway Safety Act

25 The review will not address the limited number of security-related provisions that were added to the Railway Safety Act in 1999, as they do not relate to the concerns that have provided the impetus for the review. Responsibilities of the Review Secretariat A full-time Secretariat of eight to 10 people will be established within Transport Canada under the direction of an Executive Director. The Secretariat will have key responsibilities in support of the Panel s mandate and in the assessment and implementation of the Panel s recommendations and observations. 1. Project Planning and Administration Under the panel s guidance, the Secretariat will develop and manage the overall project work plan to ensure all timelines are met and products are delivered to complete the Panel s review by October 31, In addition to providing support to the Panel, the Secretariat will provide the link to Transport Canada, other government departments and agencies, external stakeholders and international organizations. The Secretariat will also coordinate the drafting, publication and submission of the Panel s report. 2. Consultation and Communication The Secretariat will be responsible for managing the consultation program. A guidance document setting out key issues will be drafted for the Panel s approval and circulation to interested parties. The Secretariat will manage the stakeholder submissions and ensure the Panel members are briefed and prepared for their meetings. The Secretariat will also be responsible for managing communications associated with the Review. 3. Research and Analysis All stakeholder submissions will be reviewed, summarized and tracked. Policy issues will be analyzed and submitted to the Panel. The Secretariat will develop a Research Plan for the Panel s approval and undertake studies and analysis on key subjects. Consultation Guidance Document 19

26 Reporting and Timing The Panel will prepare a report for the Minister of Transport, Infrastructure and Communities that includes findings and recommendations on the provisions and operation of the Railway Safety Act and on other issues falling within the scope of these Terms of Reference. The Panel will submit its report by October 31, Timelines: January 3 January 31, 2007 February 1 March 31, 2007 April 1 July 31, 2007 August 1 September 30, 2007 October 1 October 31, 2007 Railway Safety Act Review Secretariat established and Panel members appointed Prepare Consultation Plan, Guidance Document and Research Plan Panel conducts consultations, research and analysis Panel deliberations and initial draft report Panel develops final report and submits to the Minister Consultation Guidance Document 20