As a result of my research over the last 10 years, culminating in my book—Lac-Mégantic Rail Disaster: Public Betrayal Justice Denied— I was invited to appear before the Standing Committee on Transport, Infrastructure and Communities review of Bill C-33, legislation proposed by Transport Canada to amend the Railway Safety Act, the Transportation of Dangerous Goods Act, among other legislative amendments. Bill-33 has yet to go the next stage where members put forward amendments, followed by clause-by-clause votes on the bill.
According to Transport Canada, the proposed changes in Bill 33 “aim to improve transparency and efficiency; address gaps and emerging challenges; and further improve the safety and security of the various modes of movement of dangerous goods throughout Canada.”
What struck me was the Bill’s failure to incorporate key recommendations of the Transport Standing Committee’s May 2022 Report. What follows are six examples:
First, there is no substantive improvement of the government’s safety oversight regime— Safety Management Systems (SMS). In its latest October 2022 watchlist, the Transportation Safety Board noted SMS are “still not effectively identifying hazards and mitigating risks in rail transportation.” The watchlist also found some companies are still failing to conduct overall risk assessments, an important element of their Safety Management Systems. They have continuously been on the TSB watchlist created in 2010 to highlight “issues posing the greatest risk to Canada’s transportation system.”
The next TSB Watchlist won’t be released until 2025. However, in an interview on the 10th anniversary of the Lac-Mégantic disaster last July, the Chair Kathy Fox said, “a lot of steps have been taken to improve the rules requiring trains to develop safety management systems plans. However, the TSB is concerned about the adequacy of such plans as well as the effectiveness of oversight by Transport Canada.”
The Auditor General noted in its 2021 report on railway safety that Transport Canada, “did not assess the effectiveness of the railways’ safety management systems, namely whether they improved safety by reducing the risk of accidents … eight years after our last audit, there is still much left to do to improve the oversight of rail safety in Canada.”
Nor have Safety Management Systems been made more accessible public scrutiny. Transport Canada’s response continues to be that they are reviewing the system.
Second, Bill-33 does not remove the power of railways to police themselves. Once again, Transport Canada continues to review this issue. I have written about their abuse of this power in the deadly CP Rail derailment in Field BC in 2019,
Third, it does little to lift the veil on corporate-government interactions largely protected under commercial confidentiality rules. When compared internationally, Canada’s access to information and whistleblower protection laws rank poorly. The International Bar Association rated Canada’s Public Servants Disclosure Protection Act (PSDPA) as one of the worst in the world.
Fourth, The latest TSB Watchlist also concluded that unplanned or uncontrolled movement of rail equipment continue to “create high-risk situations that may have catastrophic consequences.”
In another interview, Kathy Fox said, “the bottom line is uncontrolled movements, the underlying cause of Lac-Mégantic, are still an outstanding issue…And while some actions have been taken, we are not where we need to be … because (Transport Canada) hasn’t gone far enough…[noting that] “Collisions and derailments on main tracks — which can have the “highest severity” of all rail accidents —were 25 per cent higher in 2022 than the previous 10-year average.”
Five, Transport Canada still has not mandated modern braking systems on trains. Railways continue to push back against mandatory regulations on electronically controlled pneumatic [ECP] brakes citing cost considerations.
Transport Canada has repeatedly delayed mandating a radio-based system of enhance train control to remotely stop unintended train movement [positive train control] most recently stating that it intends for the system to be fully implemented by 2030.
In the wake of Lac-Mégantic, the government mandated stronger tank car designs for trains carrying dangerous goods and established a phase-out schedule of the old DOT-111 tank cars by 2025. The TSB wanted the phase-out of these old cars to be accelerated. However, DOT-111 tank cars carrying dangerous goods still run through Lac-Mégantic, according to residents. They include propane gas, sulfuric acid, sodium chlorate and automobile gasoline
In a recent interview, Ian Naish, former TSB Director of railway investigations, stated: “evidence from derailments in recent years suggests that if you have a derailment at a speed greater than 35 miles per hour there is no guarantee that these new tank cars will contain their products.” Lac- Mégantic residents want to see train speeds reduced and limits on train length.
Finally, while working conditions have become more dangerous due to major staff cuts and longer heavier trains, corporations continue to resist installing effective work-rest practices for workers in accordance with sound science. They remain on the TSB Watchlist as posing a risk to operations. A Federal Court judge has found Canadian Pacific [now CPKC] guilty of contempt of court for violating a court order to abide by the workers’ collective agreement and Transport Canada regulations.. CPKC has vowed to appeal the decision.
Why the repeated incrementalism by Transport Canada regarding safety? The answer according to my research, lies in the power relationship between regulator and regulated industry—regulatory capture— which involves the corporate co-optation of regulatory agencies. The status quo is deeply entrenched. Making laws and regulations more capture resistant is possible with citizen mobilization, and parliamentary leadership.
Bruce Campbell is adjunct professor, York University, Faculty of Environmental Studies; Senior fellow, Ryerson University Centre for Free Expression; author of: The Lac-Mégantic Rail Disaster: Public Betrayal Justice Denied, James Lorimer, 2018; former Executive Director of the Canadian Centre for Policy Alternatives.