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  1. July 2016 A First Nation’s claim to Vancouver Island’s rail corridor could spell the end of the E&N revival. RUN A TRAIN, OR LOSE THE CORRIDOR. That’s the latest message from the Attorney General of Canada, in its response to a First Nation’s lawsuit. The Snaw-Naw-As is calling for a return of the land taken from its reserve more than 100 years ago for the purpose of extending the E&N rail line to Courtenay. In December, it filed a civil claim in the BC Supreme Court against the Island Corridor Foundation and the Attorney General. This spring, the AG filed its response, sending a clear message to the ICF: the clock is ticking to fix the tracks and revive the railway. When the Right-Of-Way through Snaw-Naw-As territory ceases to be used for “railway purposes,” the land reverts to Canada in trust for the Snaw-Naw-As, reads the AG’s response. If successful, the lawsuit could remove a 1.4-kilometre section from the midpoint of the 225-kilometre railway line, ending any hope of reviving passenger service from Courtenay to Victoria. The ruling could also set a precedent for the other 12 First Nations whose reserves the corridor intersects. “The Island Corridor Foundation says it was founded to protect the Corridor. Unfortunately, they’ve also inherited a bunch of historical grievances,” said Snaw-Naw-As Chief Brent Edwards. These grievances date back to the creation of the reserve. In 1877, the Joint Indian Reserve Commission carved out the boundaries for what is now the Snaw-Naw-As reserve on the south shore of Nanoose Bay. At the time, a wagon road intersected the reserve. In 1912, the reserve was sliced a second time when the Canadian Pacific Railway was granted a 10.79-acre Right-Of-Way through the 140-acre reserve for $650. Today, that sleepy dirt road has grown into a four-lane, divided highway, effectively cutting the community in two, without so much as an intersection to connect both sides. Adding to the frustration is the E&N’s current state of limbo. It’s been five years since the emergency suspension of the E&N’s passenger rail service, and almost two years since the last freight train travelled this section of rail. For the 250 members of the Snaw-Naw-As, the unused corridor represents nothing but an opportunity cost. “That railway is in our way,” said Chief Edwards. “For us it’s really simple. That piece of property is not being used for what it was expropriated for…so the civil claim is basically asking to have that portion of property returned to us so we can make better use of it.” Hypothetically, the same logic could apply to the road: “If they invented flying cars, and they stopped using Highway 19, we would expect them to give that property back,” he said. “Snaw-Naw-As is really pushed to its limits of its ability to develop,” said Robert Janes, the lawyer representing the Snaw-Naw-As. For instance, the rail corridor monopolizes highway-side land that could be commercially developed. Where the tracks split off from the highway, they create a wedge of unusable land. Also, the Nation is working on building a new traffic light to better connect the community, but the adjacent rail crossing adds complexity and expense, Janes explained. “Snaw-Naw-As needs are such that it cannot just stand by and wait until some day somebody decides to do something about the railway,” said Janes. “My hope is the political actors behind the Island Corridor Foundation use this (case) as an opportunity to evaluate what really are their needs…We don’t anticipate there will be any significant rail traffic between Nanaimo and Comox at any time in the future.” To win its civil suit, the Snaw-Naw-As must convince the judge of a two-point argument: first, that rail is dead, at least running north of Nanaimo; and second, that in this scenario, the Snaw-Naw-As has an historical claim to the corridor within its reserve boundaries. We’ll look at the case for both. IN ITS NOTICE OF CIVIL CLAIM, the Snaw-Naw-As argues the Right-Of-Way through its territory is no longer being used for the railway, and there is no reasonable prospect that railway infrastructure will be restored to a condition sufficient to operate trains. It’s an argument the Island Corridor Foundation rejects entirely. “The railway continues to operate” according to its filed response. The ICF continues to maintain tracks and crossing signals, and continues to consult with stakeholders, it argues. Further, the ICF says it intends to refurbish the rail corridor, and has raised more than $20 million to do so. On this issue, the Attorney General takes no position, claiming no knowledge of the state of rail operations. It’s a conspicuous silence, considering track upgrades have been waiting on federal approval for more than four years, thereby tying up a matching provincial grant. To quickly recap: In April 2012, Infrastructure Canada pledged $7.5 million for the E&N, pending completion of five conditions. For instance, the ICF must confirm no further federal investment will be required, and must pass a federal project review. To this day, Infrastructure Canada will not say which of the conditions have been met, or give a timeline for a funding decision. Instead, it says only that it “is reviewing the (Snaw-Naw-As) lawsuit to understand any potential impacts,” according to a written response. It’s a bit of a circular argument: The federal government won’t hand over the money because of the lawsuit, and the lawsuit could win because of the lack of federal funding required to kickstart track upgrades. Meanwhile, regional funding commitments are now starting to unravel, poking holes in the ICF’s $20.9 million plan to upgrade the tracks. What’s more, there’s plenty of evidence to suggest the upgrade plan does not pass muster to begin with, and may not pass a federal review. So is rail dead? Officially, no. Realistically, maybe. IF THE ISLAND CORRIDOR FOUNDATION is eventually forced to abandon its mission to revive the rail line, the future of the corridor depends on whom you ask. According to the ICF, the answer is straightforward. “The corridor is owned by the Island Corridor Foundation as fee simple,” said ICF chair Judith Sayers. “I’ve never seen a court take away fee simple lands from anyone…If we ever get to that point where we can’t get the train going…then of course we’ll continue to use it as bike paths and trails.” This Plan B might not be realized without a fight, however. If the Right-of-Way reverts to Canadian ownership in trust for the Snaw-Naw-As—as the AG argues—it’s clear the First Nation will have little appetite for cycling trails. “How can we support people utilizing that as a recreational thoroughfare when we administrate poverty?” asked Chief Edwards. “One of the reasons we administrate poverty is our access to infrastructure and lands…are being hindered by a corridor that’s not being used.” Resentment toward the E&N is not unique to the Snaw-Naw-As. “Songhees does not support the Island Corridor Foundation,” said its Chief Ron Sam in an email. “We share the same frustrations of Snaw-Naw-As and other Nations whose lands this rail line impacts.” Judith Sayers says she can sympathize, though she doesn’t agree. She has a unique insight into the issue, as chair of the Island Corridor Foundation, but also as a former Hupacasath Chief and former chair of National Aboriginal Economic Development at UVic. “The E&N land grant has been a huge issue for most of the First Nations on Vancouver Island; it’s an outstanding issue that needs to be resolved,” she said. However, Sayers insists the federal government created these problems and needs to be the one to resolve them—not the ICF. “We’ve always looked at this as an opportunity for First Nations to have a say in the rail running through their communities,” Sayers said, adding the E&N promises new economic opportunities. Now, her challenge is to prove the case for rail, and convince her funders. It will be no small job and time is running out. Roszan Holmen, a producer for CFAX 1070, has covered the E&N and ICF’s challenges in previous Focus articles, including her Webster award-winning feature “More Red Lights Ahead?” (Dec 2014) and “Critical Crossroads for Rail on the Island” (May/June 2016).
  2. May 2016 Island politicians support rail—but not rail management. WITH ITS ICONIC ROUNDED NOSE, the vintage Canadian Pacific F-unit locomotive cut a striking figure, parked outside the Nanaimo train station on Selby Street. For the volunteers who poured years of energy and millions of dollars into rebuilding the historic station, the sights and sounds of a working train were cause for celebration. On a July-feeling weekend in early April, families, train enthusiasts and politicians gathered to check out the train, take turns on the pumper cars, and enjoy some cake to mark the 130th anniversary of rail on Vancouver Island. Twenty-five dollar tickets quickly sold out for the hour-long amble to Wellington and back. “Really what made it special was seeing reaction from people along the highway,” said Chris Alemany, a councillor in Port Alberni. “People were stopping on the side of the road and waving and hanging out of their sun roofs.” Of course, the train isn’t here to stay. It’s just a loaner, barged in from the mainland for the special occasion, but the weekend celebration served as a happy reminder of the potential and promise of a tourist train once again. The pitch: a new Central-Island excursion train for Nanaimo cruise passengers, bringing more than $20 million in economic development. And the target audience arrived just on time to catch the message, along with a free ride on the train. Municipal politicians from across the Island gathered in Nanaimo April 8-10 for an annual general meeting to debate and vote on issues of common concern. Many of the special invitees, however, were unmoved by the publicity stunt. “If you need all that money to fix the rail, why are you spending all this money foolishly?” opined Langford councillor Denise Blackwell, in the media. Others described it as a distraction from the facts: It’s been more than five years since the last train ran on the E&N, and there is no good-news funding announcement in sight. While the anniversary event may have been designed to whip up nostalgic support for rail, our political representatives sent a very different message when they got down to business at the Nanaimo conference centre. A strong majority supported a resolution from Langford calling for an audit of the Island Corridor Foundation, the non-profit society mandated to manage the E&N corridor and to preserve and develop the railway. While the resolution may be toothless, it makes clear that long-simmering frustrations with the management of the corridor have reached a boiling point. It’s also the latest in a series of attacks against the ICF, which have the potential to unravel all the efforts to revive rail on the E&N. The future of rail is at a critical juncture. THE FIRST ATTACK CAME IN THE Fall of 2015, when Langford tired of paying ongoing corridor fees and rail-infrastructure charges despite having no train running the tracks. The municipality pulled its permissive tax exemption to the ICF, which responded in kind by charging the municipality $50,000 for the right of way to build a bike trail. The tit-for-tat quickly escalated into a pissing match in the media. Soon after, Langford handily passed a motion calling for a financial and governance review of the ICF. The same motion passed at the Capital Regional District before making its way to the AGM of the Association of Vancouver Island and Coastal Communities (AVICC) in April. The second blow came in December, when the Snaw-Naw-As First Nation launched a civil claim against the ICF. It argues that land once taken from the reserve to build a railway should be returned, now that it’s no longer being used for that purpose. If successful, the suit could effectively cut the rail corridor in half. But even if the suit doesn’t win in court, it could still prove fatal by triggering more delays to long-promised federal funding to upgrade the tracks. Without this signoff, matching provincial funding remains locked up indefinitely. The third setback arrived in March. That’s when the Regional District of Nanaimo pulled the plug on its contribution agreement with the Island Corridor Foundation. “We don’t think the train is ever going to run North of Nanaimo,” said Bill Veenhof, RDN board chair. “We’ve requisitioned tax dollars for that…and if we don’t believe that the taxpayers’ money is going to be used for what it was intended, then it’s time to move on.” The regional district withdrew its $945,000 pledge, and went public with their list of grievances. Among them: a lack of communication and transparency by the ICF; a lack of faith that $20.9 million is adequate to upgrade the tracks as the ICF claims; and disappointment in the train schedule as proposed by the ICF. “We were told we were going to get daily service north of Nanaimo to Victoria,” said Veenhof. “That’s not happening…we understand that it’s weekend service for some time.” The official response from the ICF was strangely muted. A written statement said it is disappointed but optimistic federal signoff is close at hand. “The ICF Board will investigate other funding and operational alternatives,” it read. Unfortunately, it’s not that simple. The five regional districts that share the corridor signed contribution agreements contingent upon the participation of all five. When Nanaimo pulled out, it invalidated the contribution agreements signed by the Capital, Cowichan Valley, Comox Valley and Alberni Clayoquot regional districts. That resulting shortfall equals $3.2 million, unless all these districts recommit their funding under new terms. “We understand all of that; we know what’s in front of us,” acknowledged Judith Sayers, co-chair of the Island Corridor Foundation board. While the board hasn’t had time to formulate a strategy, Sayers said “it is urgent and we will be addressing it.” THE PROSPECT OF RE-OPENING a debate on funding contributions is far from the minds of Barb Desjardins and Jon Lefebure, chairs of the Capital and Cowichan Valley regional districts respectively. Both are rail advocates, and both are pinning their hopes on Nanaimo reconsidering its decision. Lefebure calls the regional-funding issue a moot point, given that federal funding is on hold for the near term. He preaches patience. “In local government, we often have to wait a long time to accomplish something we want to accomplish,” Lefebure said. “If you have something that’s worth doing, you have to have perseverance.” Barb Desjardins argues the opposite. “The snail’s pace of government decisions for this is really shocking,” said Desjardins, who is also the Capital Region’s member representative on the ICF board. “Either you’re going to give us the money or you’re not.” The federal government agreed to contribute $7.5 million in April 2012. The delays have thrown the business case into question, she argued. In the meantime, municipalities have invested millions of dollars in rail crossings that may never be used. “It’s not fair to…withhold your funding for the number of years this has occurred,” said Desjardins. She agreed it’s time to move on, one way or another. The annual general meeting of the AVICC provided a gauge on the political climate. On the one hand, politicians clearly voiced a lack of confidence in the management of the rail. On the other hand, a solid majority expressed strong support for rail itself, noted Chris Alemany, from Port Alberni. As evidence, he pointed to the success of his own municipality’s resolution: To petition the federal government to release funding for track upgrades. Similarly, politicians struck down a proposal to explore alternatives to rail on the corridor, such as recreational trails. Desjardins said the Island-wide resolution to audit the ICF provides direction. “These are protest moves to make them understand that we are very serious,” she said. The motion leaves Judith Sayers at a loss. “What are we auditing?” she asked. “We’ll be producing our next audit at the end of the month, if you’re talking about a financial audit.” To the politicians who have lost confidence in the ICF, Sayers says she would love the chance to hear them out. “What are their questions? I have no clue what it is they’re disturbed about.” Already, the ICF has taken steps to better communicate with municipalities. Mayors have all received invitations to appoint someone to a new local government liaison committee, giving them a chance to ask questions and air concerns at two meetings annually. Desjardins called it a huge step. “I think this is great news,” she said. But the reception hasn’t been so warm across the board. It might prove too little too late. The Regional District of Nanaimo won’t be won back into the funding agreement so easily. The RDN rejected the invitation, and passed a motion saying it “does not support the retention or continuation of Granneke Management by the ICF Board.” Graham Bruce is the polarizing executive director of the Island Corridor Foundation, and the head of Granneke Management. He has staunch supporters and vociferous critics, who accuse him of running nothing but a gravy train for the contractors paid, year after year, not to run a real one. Bruce’s contract is up May 30, and directors will decide whether to renew the contract by consensus. Recently, the board signalled its intention in a press release: “The governance of the ICF is sound and is managed according to the goals and objectives the stakeholders originally agreed to.” Sayers explained: “We work with management; we direct the management. If anybody looks closely at what the ICF has accomplished over the years, we’ve done a lot.” But can management win back the trust of its members? Without it, the ICF cannot be successful in its mandate to revive the train. “So the question is, [are the trust issues] just about not getting the federal funding in a timely manner?” asked Sayers. “Is that something we can blame on one person? Those are hard questions and it’s a question the board will have to deal with. It’s not going to be easy to figure all this out.” Roszan Holmen is the talkshow producer for CFAX 1070. Her feature report “E&N railway: more red lights ahead” in Focus’ December 2014 edition won a Jack Webster Award for Community Reporting.
  3. December 2014 Records recently obtained by FOI show that after explicit warnings about the condition of the E&N Railway tracks in 2009, the BC Safety Authority allowed 22 months of further deterioration before passenger service was finally terminated in 2011. Now, with $20 million in public money allocated to upgrade tracks and restart service, critics say the plan is under-funded, won’t provide long-term safety, and therefore isn’t worth pursuing. At the same time, impassioned advocates see rail as a low-carbon solution to the increasingly congested and accident-prone Island Highway—and a potential boon for tourism. “LOOK OUT!” That was the warning from the train conductor to his companions as he approached a tree lying across the railroad tracks, some five miles from Courtenay. Fred Boddy watched the incident from the train’s head end—and he logged the incident in a report to his superiors at Herzog Contracting, a company that specializes in railroad construction, rehabilitation and maintenance. The engineer didn’t slow down as he drove over the tree, Boddy noted in his account, dated July 2009. “Fortunately no damage occurred.” With 40-some years in the railway industry under his belt, Boddy had never seen anything like it. He oversaw preventive maintenance work for rail lines throughout North America. And despite these other lines running longer trains, more frequently, at faster speeds, none required the amount of maintenance work as the few Budd cars rumbling along the E&N corridor on Vancouver Island. Herzog, contracted by VIA Rail, had flown Boddy out to investigate—and his 10-hour round trip proved insightful. He discovered uncontrolled weeds choking the track, branches striking the cars, and foliage clogging the air-intake system—the likely culprit behind a recent fire on board. In other words, conditions were much the same as he’d found them in early 2007. Back then, Boddy called a meeting with the train operator and VIA Rail in response to reports of collisions with boulders, trees and other crossing accidents. “The safety to the public and rail workers can be jeopardized when the right of way is not being protected,” he told both parties at the time. Having had his warnings ignored once before, Boddy delivered his 2009 verdict emphatically: “We will do all that is possible to prevent another fire…BUT we need the Operator [Southern Rail] to do their part!…I conclude by stating that it is very expensive for VIA Rail to operate in this way and UNSAFE.” It turns out that Boddy wasn’t the only one sounding the alarm. Well before authorities shut down the train due to poor track conditions in early 2011, others were filing complaints. Documents obtained through a freedom of information request reveal these informants played a key role in applying the brakes to the historic passenger service. Their anonymous reports triggered an audit that found significant safety violations. Internal correspondence also reveals that VIA Rail had serious concerns about the operator’s liberal interpretation of track safety, and about the BC Safety Authority’s oversight of the industry. Today, critics are calling for accountability, before train service resumes under the same leadership as before. A deal to bring service back is reportedly close at hand. Many rail enthusiasts are eager for the upgrades to begin: Trains offer an energy- efficient mode of transportation, capable of relieving congestion on the Malahat, and costing only a fraction of a highway expansion. But doubts are surfacing once again, this time about whether the pledged funds are adequate to restore the tracks to a safe standard. Critics of the plan argue the only way passenger service can succeed in the long term is if it’s properly funded, and properly regulated; that without accountability for past mistakes, the new train service will be doomed to repeat them. For those who wonder whether such concerns might be overwrought, Lac Megantic provides an excellent lesson in worst-case scenarios. When that train exploded in 2013, it wiped out the heart of the Quebec town, and woke an entire nation to the consequences of industry deregulation. A similar situation has played out on Vancouver Island. Time and time again, the BC Safety Authority has proved itself a weak-willed regulator, either unwilling or incapable of enforcing the rules until pressured by the public, the media, or other agencies. How Vancouver Island lost its train For 21 years Deborah Craw was VIA Rail’s primary representative on Vancouver Island. Stationed in the old heritage-style brick station on Wharf Street, she was the face of the E&N, talking with passengers and crew daily. In about 2007, Craw started hearing reports from her regulars about bumpy rides on the train. The crew also shared their concerns about track defects with her, and she dutifully logged the problematic locations and reported them. Her input wasn’t welcomed when she brought a list of her concerns to the attention of Southern Rail and the BC Safety Authority. “People got tired of me saying ‘I am so worried about putting people on this train because I wouldn’t put my mother on my train,’” Craw recounts. “But I couldn’t live with myself if something happened on my watch.” She was told that, as a ticketing agent, she didn’t have the expertise to gauge track defects. Fair enough. But behind the scenes, professionals with the right credentials were verifying her anecdotal reports. At about the same time Fred Boddy’s train collided with the tree, the BC Ministry of Transportation and Infrastructure was doing its own investigation as part of a $500,000 study into the costs and benefits of upgrading the E&N rail line. The resulting report came to the following conclusion: “The Railway condition is considered not to be in compliance with BC Safety Authority Railway Regulations and Rules Respecting Track Safety.” The inspection took place in June 2009, but the BC Safety Authority took no action for more than a year. In August 2010, the BC Safety Authority issued a non-compliance letter, only after the public release of the BC Ministry of Transportation study. It regurgitated verbatim the findings of the 14-month-old inspection. The non-compliance letter put Southern Rail in a difficult situation. When the company signed a service agreement with VIA Rail in 2006, it inherited a nearly 120-year-old rail corridor, suffering from decades of deferred maintenance. Southern Rail was tasked with operating the trains, as well as maintaining and inspecting the tracks. However, bringing the tracks up to code wasn’t possible without a major capital investment, and upper levels of government were dragging their feet on a long-anticipated funding announcement. And so the BC Safety Authority granted some leeway to allow service to continue in the meantime. Instead of ordering a compliance plan, it ordered a risk assessment—to ensure the danger to the public fell within an acceptable range. Southern Rail complied. In the company’s own assessment, the risk of catastrophic injury (such as death or injury by derailment) was “improbable, in other words tolerable.” The company outlined its ongoing efforts to mitigate the risk, but also acknowledged that corrective action based on an appeal for funding did “not address the immediate safety concerns.” The BC Safety Authority signed off on the temporary service plan and promised to monitor the situation. Months passed. Government grants did not materialize. A daily average of 86 passengers continued to board the train. It’s hard to say how long the temporary allowances would have dragged on had it not been for several anonymous complaints lodged through the federal Transportation Safety Board’s confidential reporting program. The first complaint in January 2011 included photos depicting timbers on the deck of the Niagara Canyon Creek Bridge in an advanced state of deterioration. A second complaint depicted sections of track in mud and water. Both the BC Safety Authority and VIA Rail responded to the complaints—but not in the same way. “We have had discussions with the General Manager and Roadmaster of Southern Railway of Vancouver Island and have been assured this matter has been fully investigated,” said Eric Samuelson, railway safety manager for BCSA, in response to one of the complaints. VIA Rail, however, wasn’t satisfied with the industry’s own assessment. The federal passenger-service provider scheduled an inspection to investigate, and it invited the BCSA along to participate. VIA Rail’s suspicions grew stronger when they received yet another complaint: this one a full report, detailing defects along 40 miles of track: “Since this is the third time recently we have had an important discrepancy in what is being alleged as defects and what Southern Rail is finding, it would tend to raise our level of concern,” wrote VIA Rail director of infrastructure Paul Boisvenue. Southern Rail reiterated its assurances: “We have not found any exceptions that would affect the safe passage of trains at the posted speed,” wrote general manager Don McGregor in an email reply dated February 2011. VIA’s inspection told a completely different story. On March 7 and 8, Boisvenue led a team of inspectors along the corridor. He found “many issues: track, regulatory and political.” In his report to VIA headquarters, he levelled criticism at both Southern Rail and the BC Safety Authority. “Following the two-day inspection, VIA and BC Safety Board met to discuss the uncomfortability and Southern Rail’s misrepresentation of the applicable Safety Rule Standards (Southern Rail being too liberal),” he wrote. “Both the BCSA and the railroad were informed that VIA will not accept sub-standard inspections and maintenance. I believe that they (the BCSA) have real concerns nevertheless; although they never state this clearly, they are waiting for VIA to force the issue.” Boisvenue followed up with a letter of concern directly to the safety authority: “My understanding of the BCSA sign-off on this risk-assessment approach was that this was a very temporary initiative with the objective of giving them a few weeks to a few months to gear up for the needed track work…Having a policy of relying on forthcoming infrastructure funding in order to bring the track into compliance with the track safety rules can’t be a strategy for any railroad, particularly for one carrying passenger traffic.” Within three days, the BCSA issued Southern Rail a second non-compliance letter. The letter ordered track repairs, to be followed by a second inspection within 28 calendar days. It also ordered a halt to train traffic if the required repairs exceeded available resources. “Complaints from the public concerning the tracks non-compliance has elevated its profile to other agencies,” wrote Samuelson of the BCSA to Southern Rail. “We are now almost 7 months past the issuance of the original non-compliance, I feel that it is now incumbent of the railway to make the necessary repairs and improvements to the tracks.” On March 19, Southern Rail suspended passenger service to begin the repair work—with the full expectation of resuming within a couple of weeks. As the date for the follow-up inspection approached, McGregor again assured authorities that repair work was on track to restart the train by April 9. Again, the follow-up inspection contradicted his optimistic outlook. “First of all we walked with the Southern Rail inspectors,” states Boisvenue’s account of events. “I didn’t interfere with them but did point out to the inspection group they were leaving behind what I felt was a number of defects that should be corrected…Following this we proceeded to do random checks of areas of track that had already been inspected and repaired/cleared by Southern Rail track forces…In these locations which roughly represent 1.9 miles of track, we found 41 defects that did not meet the minimum Track Safety Rules Standards.” Southern Rail didn’t welcome the findings. Boisvenue recounted his conversation as an “energetic discussion.” “I pointed out each defect and why it didn’t meet the minimum standard...and [they] accepted our findings,” he wrote, adding: “The BCSA will allow Southern Rail to continue to operate its freight operation at slow speed.” (Read: the BCSA will not allow passenger service to continue.) On April 5, 2011, McGregor sent this message to various rail stakeholders: “I regret to advise that, as a result of an audit/inspection with VIA Rail conducted over the last 2 days, we jointly concluded that significant infrastructure improvement beyond available resources will be required in order to reinstate the passenger rail service.” McGregor announced the indefinite suspension of rail service, reiterating the joint nature of the decision—conveniently omitting mention of the gun to his head. A deal is around the corner Fast forward three years and eight months to the present. Don McGregor is now Southern Rail’s project manager for railways infrastructure improvement—tasked with overseeing the $20 million track upgrade. The company’s latest prediction is for upgrades to begin in early 2015. Islanders have heard these predictions many times before. But this time, most of the pieces are in place. It’s a complicated and fragile agreement, given the number of players involved. Provincial and federal governments have pledged $7.5 million each; five regional governments have pledged $3.2 million combined; the operator and the Island Corridor Foundation have pledged the remainder. The investment will reportedly sustain service for 10 years. After years of negotiations, VIA Rail has confirmed a new service agreement with Southern Rail. But there is one catch: Passenger service will only resume once all parties deem the track safe for passenger travel. Details of the agreement are scant, but it appears to endorse a reversal in direction: Trains will finally move from Nanaimo to Victoria in the morning, and return in the evening, to capitalize on commuter traffic. It also appears VIA Rail’s annual operational subsidies will remain the same. In the past, VIA covered the cost of fuel, Budd car maintenance, and ticketing. It also provided an annual subsidy to Southern Rail of $1.45 million to offset operational expenses for the money-losing operation. VIA kept the revenue from ticket sales. So what’s holding the plan back? The delays appear twofold: Federally, the Treasury Board must sign off on the expense; provincially, the BC Minister of Transportation must sign off on Southern Rail’s business plan. “We are working our way through that now, going back and forth with questions we have,” Minister Todd Stone told CTV News in October, adding he’ll be keeping a close eye on safety moving forward. Concerns over past safety practices may also be contributing to the delays. In October, key details about the train’s safety track record broke on C-FAX 1070/CTV. Since then, stakeholders have circled the wagons and refused interviews, but behind the scenes, the media attention sparked a flurry of activity. Within days, inspectors quietly descended on the tracks still carrying freight from Parksville to Duncan. On October 31, freight service outside Nanaimo was suspended indefinitely due to safety concerns, leaving clients such as a Duncan-based feedlot with less than 24-hours notice to find alternate transportation. It’s yet another example of the BC Safety Authority reacting to external pressure, instead of conducting inspections proactively and routinely. For its part, Southern Rail refused an interview about the recent suspension of freight service and its management of passenger service before 2011. Instead, it posted this statement: “VIA passenger rail service operated by Southern Rail on Vancouver Island was always in compliance with BC Safety Authority requirements.” The assertion defies understanding. In the last year of passenger service, Southern Rail received two non-compliance orders and failed a follow-up inspection, earning a reprimand by VIA Rail for inadequate track maintenance and misrepresentation. The company’s recent statement goes on to outline its safety management systems: “The complete railway is patrolled and inspected a minimum of twice weekly and extensively on quarterly basis,” it reads, adding annual inspections involve ultrasonic testing. “Any defects encountered with any of these inspections are repaired promptly within prescribed periods consistent with the type and severity of defect.” Judith Sayers, co-chair of the Island Corridor Foundation, defends the company. “Southern Rail has always been a really good operator,” she said, adding she doesn’t remember the board discussing any concerns about its track record. For Jimmy Sturgill, however, the response is disappointing. “Southern Rail’s statement shows that nothing has changed since 2011,” said the rail consultant and member of the E&N Action Group, calling for improved governance and transparency. “They are still maintaining that there was never anything wrong.” More questions need to be asked about how much money Southern Rail spent on track maintenance annually, said Via’s Deborah Craw. Technically, Craw is on temporary leave from her job as ticket agent, though she hasn’t worked since March 2011. “The emotional toll has been huge,” she said. She’s been criticized and ostracized for speaking out by former colleagues and other rail advocates. “You devote yourself to a career, which has been a source of pride, and camaraderie,” Craw said. To have it turn so quickly, without closure, has been a heavy personal price to pay. Now, she’s looking for someone up the chain to pay the price. “I believe there were people who were negligent in their duties and they should be held accountable.” NDP MLA Doug Routley for Nanaimo-North Cowichan is the newly-assigned critic for Island rail. He fingers a flawed oversight system. It is a conflict of interest for rail operators to maintain and inspect their own tracks, he said. “My response to that is to ask ourselves, ‘How many of us would write our own speeding tickets?’” “It’s not even fair to a corporation that is tasked with making profit for its shareholders to tell it that ‘you now must impose conditions that will result in penalties and loss of profit [to protect] the public interest,” he said. That’s the role of government. It’s a role the federal government is taking more seriously since last year’s tragedy in Lac Megantic, Quebec. The train disaster killed 47 people and triggered a large-scale investigation and a series of recommendations. The first were introduced in late October. However, the new federal safety regulation won’t apply to provincially-regulated lines like the E&N, confirms former president of the Canada Safety Council, Emile Therien. It would be in the Province’s best interest to adopt them voluntarily, he said. “But will they? It’s another question. Pressure has got to be brought to bear to make sure they do it.” BC Minister Rich Coleman, responsible for the BC Safety Authority, declined comment. The BC Safety Authority also declined an interview, but submitted a statement defending its track record. Between 2009 and 2011, BCSA conducted six safety inspections on the E&N, it says. While inspectors identified a number of concerns, “none were deemed high-risk or of a nature that would necessitate BCSA issuing an enforcement action…as there had been no reported near misses, accidents or incidents.” The BCSA also reaffirmed its philosophy of relying on industry to self-regulate: “We believe that, if given the information they need, [railway owners and operators] will take responsibility for technical safety…The decision by Southern Rail to suspend service in 2011 is a clear example of BC’s railway safety system functioning effectively.” That’s a generous interpretation of historical events, at best. Southern Rail only suspended rail service after intervention and pressure from regulators. It was not a proactive safety measure but rather the only remaining option after being ordered to conduct repair work beyond its available budget. The term “professional reliance” has surfaced in the last few years, explained Sturgill. Ten years ago, inspectors “would show up on a property anytime, unannounced.” Now, he said, the norm is to give ample notice. Often times, inspections take place on paper, rather than on site. Sturgill and his business partner (and father) Jim Sr. were members of the Island Corridor Foundation’s rail operations committee, before it was disbanded. Together, they invested hundreds of volunteer hours, logging track defects and alerting stakeholders. “We were continuously coming up against a brick wall,” said Sturgill. “We felt quite concerned because we thought there was a serious threat to safety and nobody was willing to act.” For this reason, he lodged the anonymous report to VIA Rail in early 2011. Today, he’s speaking out again, to prevent history from repeating itself. Sturgill questions whether $20 million will prove adequate to fix the tracks, when previous studies peg the number much higher. (Southern Rail’s own estimate from 2007 concludes the track required $47 million in funding.) He fears VIA Rail will not sign off on the repair work, once the pledged money has been spent. Or worse: “If somehow it did [pass inspection], it would be for a very short-term basis, and you’d expect the track to slip back into substandard conditions…and we’d be in the same position all over again.” He insists the current proposal isn’t worth pursuing. It’s a controversial position that has divided rail advocates. Some people agree the numbers don’t add up; others defend the plan, and fear his public criticism will kill any hope for moving forward. “I would hope that us bringing [concerns] forward serves as a catalyst for change,” Sturgill said. When the Ministry of Transportation crunched the numbers in 2010, it determined reviving the rail line would cost approximately $100 million. At the time, it concluded demand for train wasn’t worth such a significant investment. But that was four years ago. The case for rail is getting stronger every year, as more and more drivers find themselves stuck in gridlock. Getting back on track: a vision for rail Stew Young has witnessed congestion on the Malahat gradually worsen throughout his 22 years as mayor of Langford. He used to whip up the Island Highway to visit his mom frequently—but now he’s got to plan his weekend trips carefully to avoid the weekend rush. “Sunday is a pain,” he said. “I’ve watched it back all the way up to the Millstream Corridor…[and] if there’s an accident, you sit there for five hours.” Young added, “It really is getting to a point where you have to make your decisions based on the traffic on the road…People are already making decisions not to go up Island—so the patterns change.” As the population on Vancouver Island grows, congestion will only get worse. Right now, there are 758,500 people living on the Island. In the next 10 years, that number will grow by approximately 90,000; almost half of newcomers will live outside the Capital Regional District, according to projections by BCStats. In Greater Victoria, the regional district is pursuing solutions to the Colwood Crawl—but Young sees shortcomings. BC Transit is moving ahead with priority lanes and signals for buses. “It’s not the solution long term,” said Young. Ultimately, these changes will only add more delays for vehicle traffic. “It might work for 10 years, but the only solution long term is the train.” Westshore residents have also been advocating for an interchange at McKenzie Avenue. But Young argues an interchange will only resolve gridlock for that one small stretch of the highway—and won’t help any communities north of the Malahat. There are many practical reasons to prioritize rail over roads. There’s the speed argument: Track upgrades could reduce the Nanaimo-Victoria commute to under two hours, compared with a 2.5 hour drive depending on traffic. There’s the energy-efficiency argument: Moving freight and passengers by rail is generally accepted as a lower-carbon form of transport. Rail corridors are more level than roads, steel wheels presents less friction than rubber, and trains require fewer energy-burning stops and starts. “You can take 70 trucks and replace them with one train,” said Chris Alemany, who ran successfully for councillor of Port Alberni in November. There’s also the danger argument. “We’ve seen major accidents on the Malahat,” added Alemany. A functioning rail line will channel big trucks away from the highway, lowering the risk, he said. For work, Alemany drives to Parksville and transfers onto a commuter bus which takes him to Nanaimo. “It’s packed,” he said. “I don’t see why that bus [couldn't be replaced by] a rail car.” Finally, there’s the financial argument: Railway infrastructure is far cheaper to maintain than highways, noted Alemany. It’s a fact not lost on the BC NDP. The Province is already investing heavily in transportation infrastructure; they’re just funnelling it into road improvements rather than rail, says Routley. The MLA cites $23 million in spending announcements to improve the Malahat since 2012. A similar amount was spent on the McTavish Interchange to get to the airport, despite no clear demand for the project. “We can’t forever expand highways,” Routley said. There are natural constraints on the Island, such as Goldstream Park, where lane expansion is impossible. “The E&N is a great option for taking up some of that anticipated growth,” said Routley. All up and down the Island, dedicated individuals are working to bring back rail. Andre Sullivan helped fundraise to restore the historic train station in Nanaimo, as part of the Young Professionals of Nanaimo. The older people on the team were interested in the heritage value of the station, but the younger people got involved because they believe in the future of rail, he said. “This corridor is the best line anybody could have drawn. It cuts through all the communities on the east coast of Vancouver Island.” Because the tracks intersect most downtowns, the vast majority of Islanders live within two kilometres of the rail lines, he added. Sullivan works in downtown Nanaimo, but has clients in Victoria. Visiting them means leaving home at 5 am or 10 am to avoid rush hour. “If that train was operating, and it went from one block from my office to downtown Victoria, I’d be there all the time.” Sullivan is now leading a fundraising effort to build the E&N rail trail in Nanaimo. The trail is well on its way to completion in Victoria, and similar efforts are underway in the Cowichan Valley. Once the trail is continuous, the tourism potential for cyclists and hikers would be huge, he said. A hop-on-hop-off train ticket could be a major draw for those wanting to explore the island. “It’s one of those assets that might be good enough that you wouldn’t have to market,” said Sullivan. “People would come because it exists, like the West Coast Trail.” On the other side of the Malahat, Aaron Lypkie is advocating for rail in his own way. He founded the facebook page Rail for Vancouver Island, which now has more than 450 members. The Camosun College student also designed a new train station for Langford as part of his studies. Lypkie argues that train isn’t just practical—it’s romantic. “There is something about rail that attracts more people [than the bus],” he said. It’s got more leg room; you can get up and walk around, and the ride is smoother and more spacious, making it easier to work on a laptop. But, he said, you have to make it sexy: that means offering amenities such as wifi, on-board concession and modern equipment. Alemany agrees. “Here we are arguing about getting a 1950s Budd rail diesel car back on dilapidated track. Meanwhile, on an island to our immediate west, 21st century technology is connecting two communities, one with a population of 70,000, one 26,000— and only 50 minutes apart by car.” Alemany is referring to a maglev train running between the cities of Uenohara and Fuefuki, Japan, reaching speeds of up to 500 kilometers per hour (311 mph). The opportunities are enormous, but the people need to be included in the discussion, Lypkie said. “The Island Corridor Foundation needs to do more to engage the public. If people feel like they are part of something, they will support it…the public can be an amazing tool.” A growing group of critics echo his sentiment. Some are calling for a new governance model for the ICF that is more accountable, transparent and inclusive. ICF co-chair Sayers defends the foundation against what she calls a “small group of naysayers.” “We give out as much information as we can,” she said. “I don’t know what will satisfy them.” It might be unwise to discredit these naysayers, as they include a growing group of Island politicians, including Routley and Young. “Where are our stumbling blocks?” asked Young, about the reason for delay. “I’m the mayor and I don’t know. I need to get the information to the public of Langford because they are asking me.” “Right now, I’m putting together an advisory group,” Routley said. “One of the deficits of the ICF model has been to resist including people who have experience and expertise managing and operating railways.” Train enthusiasts are an ardent bunch. If given the chance, they will pour countless volunteer hours into rail technical and advisory committees. They belong to historical societies, and advocacy groups dedicated to the future of rail. They recognize progressive transportation planning requires alternatives to cars and trucks. They envision a future where municipalities plan development and zone industrial land around train stations, and mid-islanders can opt for a fast and convenient commute to work, free from the hassles of highway congestion. These dedicated train buffs are networked through every community along the E&N corridor. They are the best available tool to rally the public around the possibilities of rail, and attract significant public investment required to build it. But in order to win them over, the rail industry will first have to win back their trust. The E&N’s dubious safety record has shown that playing fast and loose with the safety regulations is the easiest way to turn impassioned advocates into vocal critics. Roszan Holmen is the talkshow producer for C-FAX 1070. In May 2011, she filed a freedom of information request for documents pertaining to the condition of the E&N track in the months leading up to, and following, the shutdown of passenger service. VIA Rail provided the materials almost three years later. (In 2015 Roszan Holmen was awarded a Jack Webster Award for community reporting for this story.)
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