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The Lac-Mégantic Disaster: Three Years Later.

Three years ago this week, an unattended train of 73 car-loads of crude oil from the Bakken shale formation in North Dakota, operated by the Montreal, Maine and Atlantic (MMA) railway ran away and then derailed, exploded and burned in the heart of the small Quebec town of Lac-Mégantic. Forty-seven of the town’s residents died in the ensuing inferno, making it the deadliest rail accident in Canada of the past century.

The derailment and fire were extraordinary events in terms of the lives lost and their impact on community.  Reflecting on these events, perhaps the most striking feature of this week is what hasn’t happened since the disaster.  Despite the scale of the tragedy, and repeated calls from members of the community, there has been no formal public inquiry into the Lac-Mégantic disaster and the events leading up to it. Stephen Harper’s Conservative government studiously avoided the mention of the very possibility of an inquiry.  Justin Trudeau’s Liberals have simply been silent on the matter.

There remain two overriding reasons why the disaster should be the subject of a full judicial inquiry.  In public policy terms, we have been left with an incomplete understanding of the underlying causes of the accident, and by implication, the measures that need to be taken to prevent a similar tragedy. The Transportation Safety Board (TSB) and the Auditor General of Canada have undertaken important examinations of the disaster and the underlying regulatory regime that allowed it to happen. However, both were significantly constrained in the scope of their investigations by the boundaries of their formal mandates.

At no point in the work of the TSB or Auditor-General, or through any other process, have the principal actors in the disaster been required to testify and face examination under oath in public, about the events of July 6-7, 2013. Nor have the individuals involved been examined on the public record, about the underlying management decisions at the MMA, or about Transport Canada’s approach to its role as a safety regulator in relation to the railway. Such information remains essential to understanding how the disaster occurred.

The second rationale for an inquiry is more human, but equally, if not even more, important. A formal inquiry, like those held into the Walkerton water contamination disaster, and more recently the Elliot Lake Mall collapse, provides a means of acknowledging and recognizing the scale of the disaster and its consequences for the affected community. An inquiry provides opportunities for the victims to be heard, and to tell their stories for the record. As such, the process can play a critical role in the emotional and psychological recovery of the community. As it stands the community of Lac-Mégantic has been left without such recognition of the scale of its suffering, and of the opportunities for a complete telling of the story of the disaster that an inquiry would have provided.

The second thing that has not happened since the disaster is a reconsideration of the regulatory regime that allowed the disaster to occur.  In the time since July 2013, the Conservative and Liberal governments have updated a number of technical rules and railway operating requirements.  However, even in these measures they have not gone as far as those adopted by the US Department of Transportation in its responses to the series of oil carrying train derailments, fires and explosions that have occurred since the beginning of the decade.

More fundamentally, the essentially self-regulatory regime, based on railway company formulated rules and Safety Management System (SMS) plans, remains in place. Under the SMS model, Transport Canada’s role as a regulator ceased to be primarily about checking on compliance with the department’s safety rules and became more about encouraging the industry to put in place internal management systems that were then scrutinized by department. The MMA’s behaviour prior to the disaster provided a textbook demonstration of the risks associated with such an approach. The company developed the sort of management system required by Transport Canada on paper, but never actually implemented it.

The investigations following the disaster highlighted a second problem with the existing regulatory regime, already identified by the Auditor-General of Canada in relation to the department’s implementation of the SMS model in relation to air safety regulation. Transport Canada’s already inadequate resources were being increasingly diverted away from conventional regulatory activities of developing and setting standards, conducting inspections, and more general oversight of the railways’ activities, towards conducting reviews of the safety plans developed on paper by the railways. The department was consistently found to lack the resources needed to carry out conventional regulatory functions and oversee SMS implementation.

Finally, the disaster drew attention to Transport Canada’s abysmal record of enforcement under the Railway Safety Act. Despite longstanding concerns regarding the safety performance of Canada’s railways, there had only been eight successful prosecutions under the act in the fifteen years preceding the Lac-Mégantic disaster.

Prime Minister Trudeau’s acknowledgement of the anniversary of the tragedy this week was an important step. That said, a full public inquiry into the disaster is still needed, both to understand fully how such a tragedy could happen, and to help heal the wounds in the community of Lac-Mégantic.

In the meantime, a fundamental realignment of Transport Canada’s approach to its role as a safety regulator is required.  The department needs to reassert that it, and not the railways, is the lead provider and active enforcer of railway safety rules and standards. Specifically with respect to the SMS regime, the SMS requirements should be removed from the formal regulatory regime and replaced with a personal statutory duty of care to ensure the safe operation of railways on the part of railway company officers and directors. Experience environmental law in Canada over the past thirty years suggests that, when backed by a vigourous approach to enforcement by regulators, such provisions can prompt the establishment of internal management systems that can achieve the goals of the SMS regime, without the diversion of resources away from direct, field oversight of railway operations and practices.

Until these measures are taken the safety of Canadians will continue to be at risk, three years after the most deadly railway accident of the past century.