Prairie landowners on the hook for rail crossing upgrades ask for extension, consultation

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Municipalities concerned over deadline for rail crossing upgrades – Sep 23, 2020

Landowners across the prairies are asking the federal government to extend a deadline for mandated upgrades to grade rail crossings near their land, an expense for which many say they only recently realized they were on the hook.

“These registered letters appeared in March with a deadline of the end of April, I believe, to sign it and agree to the costs as well as liability for any incident that might happen on the railway at that crossing,” says Bill Nicholson, who farms near Shoal Lake, Man., with his sister.

Nicholson says both his sister and his landlord received such letters.

“It was Canadian Pacific, firstly, naming the landowners whose property their crossing accesses as the owners of the crossing, which we certainly are not. It’s railway property that the actual crossing is on.”

A letter received by a landowner near Shoal Lake, Man. detailing a list of upgrades the railway company says they’re financially liable for.
A letter received by a landowner near Shoal Lake, Man. detailing a list of upgrades the railway company says they’re financially liable for. Bill Nicholson

Nicholson says of the two crossings, one had a price tag slightly above $2,000, and the other was around $3,000.

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“A number of landowners, farmers, who thought this was unreasonable raised the issue with MPs, farm organizations, with the railway itself, and basically I don’t know of anyone who signed these agreements,” Nicholson says.

Bill Campbell, the head of Keystone Agricultural Producers of Manitoba, says his organization was contacted by upset landowners in the spring after they began receiving letters from both major railway companies, Canadian Pacific Railway and Canadian National Railway.

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“They were alarmed by this because they had not been informed or consulted about the process, so they brought it to our attention,” Campbell says.

He recently wrote an open letter addressed to Transport Minister Marc Garneau to express concern over a “lack of consultation” with farmers over their obligations to the railway companies.

“We are asking for an extension and consultation so that maybe there could be some better understanding and possibly some changes, because landowners to this point have never borne any responsibility for the financial obligations of the crosses,” Campbell says.

Read more: Five deaths in five weeks at rural Manitoba rail crossings

“We’ll see what can happen with lobbying, but the legislation is the legislation, so we have to work within that and maybe hope for some change to that upon further investigation.”

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The legislation Campbell is referring to are the Grade Crossing Regulations, which were approved in November 2014 and take effect on Nov. 28, 2021.

Under it, landowners, whether they be private or public, are to share responsibility with the railway company for bringing federally regulated grade crossings into compliance with updated rail safety regulations.

This could include maintaining an approach, installing traffic control devices like stop signs, or ensuring proper lines of sight by clearing brush.

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With the letters sent in March, the railway companies were trying to confirm who actually owned the land near the crossing, whether they were still needed, and also secure financial commitment.

“The legislation and regulation enabling this happened six years ago, but it seemed to go unnoticed, or nobody realized the impact it would have if it was applied to all these little private crossings into a farm field that really shouldn’t be a problem and has been the railway’s responsibility historically,” Nicholson says.

Read more: Federal government says it will close some dangerous rail crossings, upgrade others

Most concerning as a private landowner, Nicholson says, was CP’s request that his sister take on liability insurance and maintenance costs for the crossing.

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A letter received by a landowner near Shoal Lake, Man. telling them to take out liability insurance for a nearby grade rail crossing. Bill Nicholson
A letter received by a landowner near Shoal Lake, Man. telling them to take out liability insurance for a nearby grade rail crossing. Bill Nicholson
A letter received by a landowner near Shoal Lake, Man. informing them of their responsibility to pay construction and maintenance on a nearby grade crossing. Bill Nicholson

“It’s putting a huge burden of liability on the landowner who doesn’t own the actual crossing. (They) just own the land beside it,” Nicholson says.

“So the landowner would have all of the costs and none of the control, and for something that the railway has done for the last 130-odd years, we certainly had no reason to expect anything different would happen.”

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Meanwhile, organizations representing municipalities in Manitoba, Saskatchewan, and Alberta have teamed up to ask Transport Canada for an extension, citing the tight timeline and the amount of resources presently tied up in dealing with the pandemic.

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“I would suspect of the 137 municipalities in the province of Manitoba, there are very few that do not have either a CP or a CN rail line running through their municipalities,” said Ralph Groening, president of the Association of Manitoba Municipalities (AMM).

“How we heard about the problem was farmers, individuals, and communities were being invoiced significant amounts for work that had already been done; there was a demand for immediate payment. So that of course got our attention and we picked up the ball at that point.”

Groening says some of those invoices received by municipalities were in excess of $100,000.

He’s since been working alongside his counterparts in Saskatchewan and Alberta to get Transport Canada to agree to three main demands.

They want assurances that a federal fund to help pay for the upgrades will be topped up as needed and released expediently, better communication, and to delay the deadline.

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“It all goes back to public safety, and we are on board with public safety,” says Groening.

“One of our requests has been simply this: please let’s improve the communication so we can discuss what the options are. Perhaps use a local company. Let’s talk about the timing of the expense that’s going to be incurred by the individual or municipality. There hasn’t been that communication.”

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Ray Orb, president of the Saskatchewan Association of Rural Municipalities, agrees the lack of communication has left him with a “sour taste.”

“I think the railways were kind of caught in this, too,” says Orb.

“But it was done in a timeline that wasn’t reasonable. Because of that November 2021 date, we’ve asked for an extension to figure this out.”

All the groups involved say they’ve yet to hear a response from Transport Canada.

In email responses to questions, neither of the railway companies or Transport Canada indicated whether they would support extending the deadline.

Read more: Cleanup continues at CP train derailment near Guernsey, Sask.

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“Accidents at grade crossings have been a persistent and serious problem over time in Canada and remain a significant cause of fatalities and serious injuries involving railway operations,” a spokesperson for Transport Canada wrote.

“Starting in 2015, Transport Canada took measures to ensure road authorities, private crossing owners and railway companies have the information needed to comply with the regulations and to understand what funding is available.”

The department says the Canadian Transportation Agency can help determine who is financially responsible for construction and maintenance, or it can help negotiate an agreement if landowners haven’t already signed.

“My landlord didn’t sign anything, my family didn’t sign anything, so I guess we’re kind of in a holding pattern hoping that common sense and fair play will ultimately prevail and this will all be re-thought,” Nicholson says.

Anyone who has a rail crossing near their land and hasn’t yet heard from a railway company is encouraged to contact them.

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