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Lac-Megantic: The Case for a Judicial Inquiry – Published in the Montreal Gazette, January 1, 2014

December 29, 2013

The return to train service to Lac-Megantic, Quebec last week has brought back painful memories of the events of the early hours of July 6th 2013 for the town’s residents, when an unattended train of 73 car-loads of crude oil from the Bakken shale formation ran away and then derailed, exploded and burned, killing 47 residents. The disaster stands as the deadliest rail accident in Canada in the past century.

Since the time of the accident a picture has been emerging of a succession of failures by the train’s owner and operator, and most significantly, on the part of the federal transportation safety regulator, Transport Canada.

The Lac-Meganitic disaster was precisely the sort of event that Transport Canada’s regulatory framework was supposed to prevent. Instead Canadians have been presented with a growing list of lapses on the part of the federal regulator. There was no response to the enormous increases in the amounts of oil being shipped on Canada’s railways, long-standing concerns regarding the safety of the DOT-111 type tank cars being used to move this cargo were left unaddressed, no steps were taken to ensure proper hazard classification of oil cargos or require that emergency response plans be in place for these cargos and appropriate rules regarding the safe operation and parking of trains carrying dangerous goods were not established and enforced.

More broadly, Transport Canada failed to implement properly and oversee the self-regulatory model, termed “safety management systems” it had adopted for the rail sector, Questions about whether the “safety management system” model was appropriate for marginal short-line operators like the Montreal, Maine and Atlantic railway, the operator of the Lac-Megantic train, do not even seem to have even been asked.

So far, this picture has emerged in fragments through reports from the Auditor General of Canada (OAG) and Commissioner for Environment Sustainable Development (CESD), the Transportation Safety Board (TSB), and the ongoing investigative efforts by the media, particularly the Toronto Star, Globe and Mail and CBC.  All of these actors have done outstanding work, but are each subject to significant limitations. The Auditor General, CESD and TSB all have limited mandates and are subject boundaries in their investigative powers. The work of media investigators is hampered by barriers to accessing information and documents held by the federal government and by private actors involved in the disaster. There are police investigations and investigations by Transport Canada itself, but these are limited in scope as well, and may take years to conclude.

The closest thing to a comprehensive investigation of the disaster so far is the recently initiated study by House of Commons Standing Committee on Transport on the transportation safety regime, particularly with respect to dangerous goods. Although the committee study is a welcome development, it is unlikely to provide the depth and independence of analysis needed in this case. The committee’s process is almost certain to be subject to very tight control by the government, which has a majority on the committee. Moreover, the standing committee lacks the resources and infrastructure to conduct a comprehensive assessment and investigation.

In the end the only way to fully understand what happened and why, and develop a comprehensive set of recommendations to ensure that a similar disaster does not occur again is through an appropriately mandated judicial inquiry. The scale of disaster alone, which far exceeds the loss of life in the Walkerton, Ontario and North Battleford, Saskatchewan drinking water disasters, and more recently the Elliot Lake, Ontario mall collapse, all of which were subject to full scale judicial inquiries, demands such a response. Last major train accident in Canada that resulted in a significant number of fatalities, the 1986 collision between a CN freight train and a VIA rail passenger train, near Hinton, Alberta, in which 23 were killed, was also subject to a full commission of inquiry.

The range of factors at work in the Lac-Megantic case requires a comprehensive review, free of the possibility of political interference, and with full investigative powers. This means more than access government documents as the OAG and TSB have, but also the ability to compel public testimony on the part of the governmental and non-governmental actors involved. In addition, unlike the OAG and TSB, an inquiry would be free to question the underlying regulatory model being employed by the federal government in situations where it is the primary public safety regulator.

So far the federal government has been carefully managing its responses to each incremental revelation of Transport Canada’s failings. This may be politically expedient in terms of underplaying the colossal scale of the regulatory failure in the Lac-Megantic case. It has also had the effect of limiting the scope of the government’s responses and the extent to which they interfere with railway operations, particularly the movement of oil by rail. However, it does little to ensure an effective and comprehensive response to the failings of the government’s current approach to rail safety regulation.