Chapter 12: Building Relationships
2. State of Rail Safety in Canada
4. Regulatory Framework
5. Safety Management Systems
6. Information Collection, Analysis and Dissemination
7. Proximity Issues
8. Environmental Protection and Response
9. Operational Issues
10. Scientific and Technological Innovation
12. Building Relationships
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In this report, we have examined the national railway safety framework in Canada. We have recommended improvements through amendments to the Railway Safety Act (RSA) itself, and other changes to governance, regulatory procedures and practices, guidance for safety management systems (SMS), information collection and dissemination, resolution of proximity issues, environmental protection and response, operations, support for innovation and the need for additional resources. We have also pointed out where we found that the existing framework is functioning well and should be maintained.
Over and above the processes and systems, effective functioning of the RSA requires the collaboration and participation of all interested stakeholders. We note many good examples where stakeholders have established cooperative processes aimed at educating the public and promoting railway safety. Operation Lifesaver and Direction 2006 are successful cooperative efforts involving railway companies, Transport Canada, other levels of government, public safety organizations, police, emergency responders, unions, and public and community groups. The joint proximity initiative between the Railway Association of Canada and the Federation of Canadian Municipalities is building a common approach to the prevention and resolution of issues that arise when people live and work in close proximity to railway operations.
We learned that in organizations with effective safety management systems, a healthy safety culture is key, and that such a culture cannot be developed and maintained without mutually supportive, collaborative working relationships. We observed that the relationships developed in well-managed occupational health and safety committees contribute to a spirit of collaboration and an atmosphere of mutual trust and respect.
As a Panel, we firmly believe that improving railway safety depends on building and maintaining strong and effective relationships among the many institutions, organizations and individuals responsible for railway safety. Particular attention must be paid to the important relationship between the railway industry and the regulator, Transport Canada.
The restructuring of the railway industry, the introduction of the industry-led rule-making process, the implementation of the SMS approach and the resource pressures have all affected the relationship between the regulator and the industry. We observed frustration on the part of both. The industry feels that Transport Canada lacks transparency, is not respecting the rule-making provisions of the RSA as they were intended, and does not recognize a company's responsibility for the safety of its railway operations. On the other hand, Transport Canada feels that the industry does not understand or respect its ultimate responsibility for a safe national railway system.
Despite the challenges, we observed that all players were highly committed to acting in the best interests of railway safety. We are convinced that this provides a sound basis on which to build.
It is important to reiterate here that the RSA was designed to foster a spirit of cooperation between industry and government. As we have noted, we find that the framework of the Act and its general principles are fundamentally sound. In its objective, the Act very clearly provides that the railway companies are responsible for ensuring the safety of their operations. The Act also encourages the collaboration and participation of interested parties in improving railway safety.
The Panel is convinced that openness, transparency and accountability are key to restoring trust. The cooperative and collaborative approaches that we recommend for regulation and rule making, as well as for consultation, are intended to encourage and reinforce relationships. The success of safety management systems depends on trust, commitment and solid relationships.
The way in which the current rule-making process is functioning is probably the single, most important contributor to the loss of mutual trust and respect between the regulator and the railway industry. There is a pressing need for Transport Canada and the industry to re-establish an effective approach to rule making. Transport Canada must be more transparent in its actions, so that its perspectives are clear and surprises can be avoided. A key issue for the rule-making process will be for the department to provide industry with the rationale for requiring it to file a new rule, or for a condition it wishes attached to a rule. For its part, the railway industry needs to listen carefully to the input provided by the department before submitting any proposed rule for approval by the Minister.
We recommend that Transport Canada, in consultation with stakeholders, establish the process to formulate and adopt rules and that this process be entrenched as a regulation. Such a regulation should clarify the processes, roles and accountabilities required in the rule-making process. The need for both parties to work collaboratively to develop the regulation should provide spin-off benefits.
Another area in which transparency can be improved is the delegation of powers under the Railway Safety Act. Railway companies told us that they could not ascertain which powers under the RSA are delegated to whom. Transport Canada should provide written confirmation to the industry of this delegation.
We have recommended how Transport Canada should revive and improve its consultation processes to achieve collaboration and participation at all stages. We regret the near disappearance of the Railway Safety Consultative Committee. Furthermore, we are struck by the fact that the committee that undertook the 1994 review of the RSA recommended “implementation of a robust formal consultation mechanism.”1 That committee also provided the rationale for such a process.
If the government is to concentrate its efforts on ensuring public safety while allowing the safety of railway operations to be handled primarily by the railway companies, information dissemination, including the results of safety audits and safety performance, should take on more prominence. Moreover, increased reliance on the railways to manage their own affairs should be balanced by the responsibility of listening to more feedback from the general public and interested parties on issues of public concern and perceptions of rail safety.2
The Panel strongly believes that the relationship of mutual trust and respect requires the industry to recognize Transport Canada's ultimate responsibility for a safe national railway system. Railway companies must accept that there is a limit to collaboration. Acting on the advice of departmental officials, it is the Minister who has the final decision-making authority in the public interest.
The effective implementation of the Railway Safety Act requires the collaboration and participation of interested parties in improving railway safety. Effective collaboration hinges on building an atmosphere of mutual trust and respect.
The industry and Transport Canada must work at restoring mutual trust and respect.
- Transport Canada and the industry must be more open and transparent in their dealings with each other; and
- Transport Canada must recognize the railway's responsibility for safe railway operations and conduct itself accordingly, while the industry must fully recognize and respect the regulator's ultimate responsibility for a safe national railway system.
We note that it is quite common in the Canadian parliamentary system to have a provision in new legislation requiring it be reviewed, usually five years after it comes into effect. The objective of these reviews is to assess the appropriateness and currency of new legislation.
The form of review varies from statute to statute, but the practice itself is normal. The use of an independent Panel to conduct these reviews provides impartiality and has been the traditional practice for the transportation sector, most recently with the reviews of the Canada Transportation Act, the Canada Marine Act (CMA) and the Canadian Air Transport Security Authority (CATSA) Act.
The original RSA that came into force in 1989 had a review clause and an independent committee reviewed the operations of the Act and submitted its report, On Track: The Future of Railway Safety in Canada, to the Minister with recommendations for change. We reviewed this report and were struck by the depth of analysis and quality of the recommendations. We are surprised that when the Act was modified in 1999 it did not contain a review clause.
Based on our experience with this Review of the RSA, we are convinced that the review process provides significant benefits. Not only does it ensure that the Act and its provisions are current, the process itself provides the opportunity for many stakeholders to present their challenges, successes and views with respect to improving safety of the railway industry. We observed that many positive actions were initiated during the Review. We believe that they stemmed directly from this process, which created the opportunity for stakeholders and, in particular, the industry and the regulator, to hear, reflect on, and respond to the views of others.
Discussions with representatives from other countries at an international conference on railway safety revealed that they had used Canada's Railway Safety Act as a model. These representatives noted the positive aspects of the Act and were impressed that it had undergone two reviews by independent panels.
A review of the Railway Safety Act should occur before the expiration of a period of five years after the coming into force of the amendments that follow from the present review.
1 Railway Safety Act Review Committee, On Track: The Future of Railway Safety in Canada, Report of the Railway Safety Act Review Committee (December 1994), page 54.
2 Ibid, page 54.
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