WHEREAS the resolution “Legal opinion on the jurisdiction of the Weed Control Act on CN Rail” (attached, in member background) was carried at the October 24, 2014 Peace Region Agriculture Service Board Conference requesting that action be taken by the Alberta Association of Municipal District and Counties (AAMDC); and
WHEREAS during the debate on the resolution, the point was made that the AAMDC would require support from the member municipalities to take the requested action, and the support would be best garnered by resolution at the AAMDC Spring Convention; and
WHEREAS CN Rail has expressed the opinion that the Weed Control Act of Alberta (WCA) has no jurisdiction on their property; and
WHEREAS a legal opinion on this question was received by Alberta Agriculture and Rural Development, however it is unable to be shared due to attorney/client privilege; and
WHEREAS CN Rail operates in over 50% of the AAMDC member municipalities and the question of jurisdiction impacts whether municipalities can legally enforce the WCA and recoup weed control costs, as well as if appointed inspectors could be charged with trespassing; and
WHEREAS CP Rail, unlike CN, has made no claims regarding the jurisdiction of the WCA on their properties;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties obtain a legal opinion on the jurisdiction of the Weed Control Act of Alberta for all railways, and that the opinion be shared with all of its member municipalities.
This situation started in the summer of 2013, when the MD of Smoky River’s Agricultural Fieldman was informed via e-mail, by a CN staff member in charge of the vegetation program for the province that “CN Rail is federally regulated and the Weed Control Act of Alberta does not have jurisdiction on CN property”, and further stated that: “It is considered trespassing if there is entry onto CN property without the proper CN documentation and permissions.” Alberta Agriculture and Rural Development (AARD) staff attempted to meet with CN Rail staff to discuss weed control issues on CN property, however CN declined to meet.
A resolution requesting AARD to obtain legal opinion on the jurisdiction issue was carried at the January 2014 Provincial ASB Conference, and though AARD did receive the legal opinion, it cannot be shared due to attorney/client privilege.
This is an issue which impacts the majority of Alberta’s rural municipalities, and having each one request a legal opinion is wasteful, and may be perilous if contradicting legal opinions are received. It is necessary to prove the municipalities’ legal jurisdiction so that if our inspectors are accosted by CN Police, they will have proof of their legal right to be on the property and could offer the potential argument that the CN Police are in contravention of WCA Section 11, which states it is an offence to obstruct or delay an inspector. It is necessary to protect the members of the AAMDC from a potential costly legal battle to prove their right to enforce the WCA and to recoup weed control costs.
Supporting Information Included:
Emergent Resolution No. 1 – Peace Region A.S.B. Conference
Legal opinion on the jurisdiction of the Weed Control Act on CN Rail
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Whereas:
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At the 2014 Provincial A.S.B. Conference, a resolution was passed asking in the Therefore Be It Resolved that; Alberta Agriculture and Rural Development work with Alberta Justice, Canadian National Railways and Alberta’s Municipalities to confirm that CN Rail is bound by the Weed Control Act of Alberta, and
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Whereas:
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Alberta Agriculture and Rural Development have received legal opinion on the matter from Alberta Justice, but have stated in letters from Deputy Minister Jason Krips that the opinion is confidential under the client relationship that is created, and
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Whereas:
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Deputy Minister Krips encourages municipal authorities who require clarification to seek their own legal advice on issues relating to the Alberta Weed Control Act (WCA), and
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Whereas:
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In a letter from the M.D. of Smoky River to Deputy Minister Krips, we opined that “Having each affected municipality request their own legal opinion in such a matter would be a criminal waste of money, in addition to potentially creating more issues if some legal opinion was positive (we have jurisdiction) and others were negative.” Our opinions regarding having individual municipalities requesting legal opinion in this matter have not changed, and
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Whereas:
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In the responses and correspondence received from CN rail regarding the resolution, there is no indication that CN’s stance vis a vis being bound by the Weed Control Act has changed. |
THEREFORE BE IT RESOLVED THAT ALBERTA’S AGRICULTURAL SERVICE BOARDS REQUEST THAT the Association of Alberta Municipal District’s and Counties (AAMD&C) obtain a legal opinion on the jurisdiction of the Weed Control Act of Alberta on CN Rail property, and that the opinion be shared with all of its member municipalities.
Sponsored by: Municipal District of Smoky River No. 130
Moved by: ________________________
Seconded by: ______________________
Carried: ______________________ Defeated: ______________________
Status: AAMD&C Board of Directors
Resolution No. 1 – Provincial A.S.B. Conference January 2014
CN Railways Weed control
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Whereas:
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Canadian National Railways is a large private company which owns land in the province of Alberta. Ongoing issues with CN’s weed control programs exist in the province, and
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Whereas:
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Over the course of the summer season 2013, CN staff stated that ‘CN Rail is Federally Regulated and the Weed Control Act of Alberta does not have jurisdiction on CN property’, and further stated that: ‘It is considered trespassing if there is entry onto CN property without the proper CN documentation and permissions.’, and
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Whereas:
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In past responses to Resolutions requesting Railways in Alberta to control the noxious weeds on their properties, CN has stated they wish to work with municipal inspectors and accepted their responsibility under the Weed Control Act, and
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Whereas:
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CN requires an onerous and involved work permit application, contractor training course and insist on a minimum 24 hours notice just to allow entry onto property, which during the busy weed season, when a 5 minute walk onto a Right-of-way may be needed to confirm a plant’s identity, is ludicrous, and
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Whereas:
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The Railway Safety Act states: “No person shall, without lawful excuse, enter on land on which a line work is situated”, and
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Whereas:
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The CN Guidelines Regarding Access to Workplace lists Types of Access, Requirements and Documentations ie for Contractors, Visitors and “Regulators in line of duty (for example: Transport Canada, Transportation Safety board, Human Resources Development of Canada (HDRC), Federal Railroad Administration (FRA), National Transportation Safety Board (NTSC)” whose requirements for access are simply – ‘Must present Inspector/Investigator ID card’ and ‘Must be given Safety Briefing where applicable’ Documentation required is ‘Regulatory ID card’. |
THEREFORE BE IT RESOLVED THAT ALBERTA’S AGRICULTURAL SERVICE BOARDS REQUEST THAT Alberta Agriculture and Rural Development work with Alberta Justice, Canadian National Railways and Alberta’s Municipalities to confirm that CN Rail is bound by the Weed Control Act of Alberta.
AND FURTHER THEREFORE BE IT RESOLVED THAT ALBERTA’S AGRICULTURAL SERVICE BOARDS REQUEST THAT Alberta Agriculture and Rural Development, work with CN to confirm that Inspectors appointed under the Weed Control Act of Alberta are considered to be “Regulators in line of duty” under CN Guidelines Regarding Access to Workplace thereby waiving the requirements for Work Permits, Contractor training and notice to be given prior to entry onto CN Rail property.
Sponsored by: Municipal District of Smoky River No. 130
Moved by: ________________________
Seconded by: ______________________
Carried: ______________________ Defeated: ______________________
Status: Provincial
Department: Alberta Agriculture and Rural Development
Resolution #1
CN Railways Weed Control
Therefore be it resolved that Alberta’s Agricultural Service Board request that Alberta Agriculture and Rural Development work with Alberta Justice, Canadian National Railways and Alberta’s Municipalities to confirm that CN Rail is bound by the Weed Control Act of Alberta.
And further be it resolved that Alberta’s Agricultural Service Boards request that Alberta Agriculture and Rural Development, work with CN to confirm that Inspectors appointed under the Weed Control Act of Alberta are considered to be “Regulators in line of duty” under CN Guidelines Regarding Access to Workplace thereby waiving the requirements for Work Permits, Contractor training and notice to be given prior to entry onto CN Rail property.
Response:
Alberta Agriculture and Rural Development
Thank you for your February 14, 2014 letter requesting a Departmental Response to the Agricultural Service Board Provincial Committee Resolution #1, Canadian National (CN) Railways Weed Control. I appreciate the opportunity to provide the following response on behalf of Agriculture and Rural Development (ARD).
Railways often have right-of-way weed inspection/enforcement issues that obstruct appointed municipal inspectors in the efforts to enforce the Weed Control Act (WCA). While railway right-of-ways in Alberta are covered under the WCA, the railways also have issues that need to be considered for WCA enforcement in areas that may present safety concerns for railways. For example, CN property requires an approved work permit in place prior to entry, which even includes urban Police forces should they wish entry onto railway lands. These permits can be dated for a maximum of one year, and the railway requires that each municipality have its own work permit in place, as permits are limited to one general location, and the railway supervisors responsible for the track in each area can vary.
With these issues in mind, ARD staff are reviewing situations in neighbouring provinces that have developed a plan to deal with weed management issues. This review will help inform the development of our own plan that sets out procedures that satisfy both WCA-appointed inspectors, and any railway safety and procedural concerns. Both CN and Canadian Pacific Railways will be involved, as each railway has weed problems and safety concerns.
If there are any questions with regard to this issue, they can be directed to Mr. David Feindel, Branch Head of AARD’s Crop Research and Extension Division at 780-422-4911 (toll-free by first dialing 310-0000).
Further response from Alberta Agriculture and Rural Development
Thank you for sending me copies of your June 11, 2014 letters in reference to the 2014 Resolution Number 1: CN Railway Weed Control. As you indicated in your letter, the Agricultural Service Board Provincial Committee was unclear whether an inspector appointed under the Alberta Weed Control Act was considered to be a “Regulator in the Line of Duty”.
By way of clarification the term “Regulator in the Line of Duty” is in the CN policy that grants access to Federal Agencies: “Regulators in line of duty for example: (Transport Canada, Transportation Safety Board, Human Resources Development of Canada, Federal Railroad Administration, National Transportation Safety Board)”. According to the enclosed CN document, CN Guidelines Regarding Access to Workplace, Weed Inspectors appointed under the Alberta Weed Control Act are not Regulators in the Line of Duty.
I assure you that Agriculture and Rural Development is committed to addressing this issue, and will keep you informed regarding our discussions with the railways on this matter.
CN
As you may already be aware, CN has an extensive weed control program in Alberta, and, indeed, throughout its network. We hire professional contractors to carry out the program, and these contractors are required to respect all applicable laws and regulations. Furthermore, these contractors are required to carry out all weed control activities in an environmentally responsible manner and following best-established industry standards.
Spraying for weeds on the railway is carried out for safety reasons. The elimination of weeds greatly reduces tripping hazards where CN personnel and contractors are working, and also limits the potential for drainage problems and damage to the tract infrastructure caused by invasive or fast-growing weeds. Furthermore, effective weed control also limits the future need for brush cutting in order to protect sightlines along our corridors. CN’s weed control program helps us operate a safe and efficient railway.
As CN strives to be a good neighbor in all of the communities where we operate, we try to incorporate community concerns pertaining to specific locations and issues into the weed control work schedule, whenever feasible.
We note your letter states that railway safety concerns often obstruct municipal inspectors from being able to do their legislated inspection and enforcement duties. The process CN has put in place for accessing its property was developed for safety reasons. Under the Railway Safety Act, railways are responsible for all aspects of railway safety which includes ensuring the safety of CN personnel, the safety of operations through the communities we cross and the safety of third parties while on the right-of-way. Uncontrolled access to the rail right-of-way, without proper briefing and instructions, can have serious consequences. CN’s right-of-entry process was developed for this very reason and application of this process also ensures compliance with the provisions of the Railway Safety Act.
Resolution No. 1 also refers to the simplified access procedure for regulators in the line of duty. It is important to note that this simplified procedure only applies to federal regulators specifically charged with overseeing CN compliance with various aspects of rail and workplace safety; these include Transportation Safety Board investigators and Transport Canada inspectors, and their equivalents in the United States. Representatives of these organizations are trained in railway safety and fully understand the risks associated with entry onto a railway right-of-way.
We hope that the information above has shed some light on CN’s weed control program. CN would be pleased to collaborate with the ASB in the handling of any specific weed control issue you may identify in the future.
Additional Member Background: Link 1
Additional Member Background: Link 2
The AAMDC has no active resolutions directly related to this issue.
This resolution did not require any action on the part of government.
The AAMDC obtained a legal opinion on the jurisdiction of the Weed Control Act of Alberta (WCA) for all railways. Generally speaking, the legal opinion indicates that federal railways within Alberta and provincially regulated railway lands must comply with the weed control requirements of the Weed Control Act (WCA). The legal opinion identifies that municipal inspectors have broad authority to enforce and monitor compliance under the WCA within geographical boundaries of each municipality and that activity undertaken by a federal railway company on its lands that are not integral to federal undertakings are subject to provincial legislation. Further, the legal opinion expresses that complying with the WCA will not impair the operation of any federal railways nor is there a federal law which directly conflicts with the provisions of the WCA in this regard.
This resolution has been assigned the status of Accepted.