Decision No. 118-R-2015

APPLICATION

[1] The Canadian Pacific Railway Company (CP) filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 98(2) of the Canada Transportation Act (CTA) for an approval to construct a railway line to service the K+S Potash Canada GP Legacy Mine north of Belle Plaine, Saskatchewan. CP’s proposed railway line of 30.3 kilometres (18.8 miles) will connect K+S Potash Canada GP Legacy Mine to the Kalium Spur at mileage 0.9 and then to CP’s Indian Head Subdivision north of Belle Plaine, Saskatchewan.

ISSUE

[2] Is the location of the railway line reasonable taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the line?

PRELIMINARY MATTER

[3] CP filed with the Agency agreements it reached with Aboriginal communities regarding its Belle Plaine project. CP submits that certain portions of the agreements are confidential. In this regard, CP filed redacted versions of these agreements.

[4] The Agency has reviewed the material in question and determines that it is confidential. Accordingly, the Agency grants CP’s request.

[5] The unredacted versions of the agreements will be placed on the Agency’s confidential record and the redacted versions of the agreements will be placed on the Agency’s public record.

FINDINGS

[6] The Agency has considered the information on the record and based on the circumstances of this case, the Agency is satisfied that:

• The location of the railway line is reasonable taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the railway line.
• The Aboriginal consultations CP conducted have been adequate.

CONCLUSION

[7] Accordingly, the Agency, pursuant to subsection 98(2) of the CTA and subject to the following conditions, approves the construction of the railway line as shown on Plan No. 304888-152 dated July 24, 2014 as modified by Plan No. 304888-SK‑93, dated February 5, 2015.

CONDITIONS

[8] CP shall, during the construction and operation of the railway line:

1. Implement the commitments, best practices and measures to protect the interests of the localities as set out in its application and supporting documents as well as supplementary information filed on February 24, 2015 and correspondence filed on March 13 and 18, 2015. These include the measures recommended in the February 2015 Water Users Inventory with regard to protection of the water supply. These also include the measures committed to in the Environmental Management Commitments for Construction document of February 2015 with regard to site preparation, air and water quality, storage of petroleum products, spill prevention and readiness, noise control, public access and safety, species at risk, heritage resources and monitoring.
2. Cause no variations to these commitments, mitigation measures, and procedures without the prior approval of the Agency.

[9] The reasons for this Decision will follow under separate cover.

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REASONS FOR DECISION NO. 118-R-2015

August 5, 2015

APPLICATION by the Canadian Pacific Railway Company pursuant to subsection 98(2) of the Canada Transportation Act, S.C., 1996, c.10, as amended.

INTRODUCTION

[1] On September 25, 2014, the Canadian Pacific Railway Company (CP) filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 98(2) of the Canada Transportation Act (CTA) for an approval to construct a railway line to serve the K+S Potash Canada Legacy Mine (Legacy Mine), north of Belle Plaine, Saskatchewan.

[2] In February, March and April 2015, CP filed updated plan drawings of the Qu’Appelle bridge design and technical reports of geotechnical, hydrological and hydrotechnical investigations to address issues of drainage, local groundwater supply, erosion and soil stability, as well as updated information with regard to Aboriginal consultations.

[3] In Decision No. 118-R-2015 dated April 28, 2015, the Agency made its determination. The reasons for the Decision follow.

ISSUE

[4] Is the location of the proposed railway line reasonable taking into consideration the requirements for railway operations and services and the interests of the localities that will be affected by the line?

PRELIMINARY MATTER

[5] On April 13, 2015, CP filed copies of a collaborative agreement and a traditional monitor agreement it reached with the Pasqua First Nation. CP also made a request for confidentiality and filed redacted versions of these agreements. CP claims that the disclosure of specific terms and conditions of the agreement could interfere with its negotiations with other First Nations across North America because financial contributions and support are generally divisive points in negotiations.

[6] The Agency has reviewed CP’s request and is satisfied that the disclosure of the information CP is seeking to protect could interfere with future negotiations and should be kept confidential.

THIS CASE

Location of the railway line

[7] CP’s proposed railway line of 30.3 kilometres (18.8 miles) will connect the Legacy Mine to the Kalium Spur at mileage 0.9 and to CP’s Indian Head Subdivision north of Belle Plaine.

[8] The proposed Belle Plaine railway line will run through the sparsely populated rural municipalities of Pense and of Dufferin. CP states that the railway line will not be used for car storage nor will it include any rail yard, fueling station or repair facilities. CP asserts that it will not carry any restricted commodities such as dangerous goods on the railway line.

[9] Trains will be loaded and assembled in the rail yard that K+S Potash Canada (K+S) will construct and operate on land that it owns or leases in the immediate vicinity of the Legacy Mine. K+S personnel or contractors will operate and move the trains to the end of its property where CP personnel will take over and operate the trains on CP’s proposed railway line.

[10] CP states that it considered four routes and it chose the shortest and most direct route to the Legacy Mine. CP asserts that using any of the three alternative routes ranging from 36.7 to 44.3 kilometres in length would have had impacts on local watersheds or resulted in a greater possibility of disturbing archaeological sites. Some routes would have required crossing multiple properties or passing through sensitive natural habitat, for example, along a lake ecosystem. CP contends that because the chosen route connects to the existing Kalium Spur, it limits the project footprint. The route chosen for the single track line runs along rural roads and between quarter sections of land whenever possible to minimize dividing properties and the route passes through 46 quarter sections of 24 landowners. The nearest residence is located 770 m from the proposed railway line.

[11] CP maintains that the proposed route will impact the fewest number of communities, residents and sensitive environmental areas.

[12] The proposed alignment will cross CN’s Central Butte Subdivision and 10 public roads, 10 private roads and numerous utilities for which CP has obtained or will need to reach a crossing agreement. CP states that in the absence of crossing agreements, it will seek Agency approval for the construction of the crossings.

[13] A single span bridge across the Qu’Appelle River will require cuts and embankments on the approaches to the Qu’Appelle Valley in order to maintain a safe railway grade between 1.2 percent and 1.5 percent. The continuously welded railway line will be built on an embankment ranging from a maximum of 29 m on the south side of the Qu’Appelle Valley to a minimum of 10 m on the north slope of the Valley.

[14] Concrete box culverts will be installed on the broad bottom of the river valley to permit excess floodwaters to flow without being limited to the width of the bridge opening. The culverts, which are intended to minimize potential flooding in the area, are designed for floodwater levels projected to occur once in 100 years.

[15] The cuts on the south slope of the Qu’Appelle Valley will intersect existing aquifers. Groundwater discharge from the aquifers could cause potential drainage and erosion issues while the high rail embankments raise issues of slope stability. CP addressed these issues by incorporating specific drainage and slope works in the railway line design. CP also plans to monitor water levels and slope stability following the construction.

[16] A Water Users’ Inventory Report (February 2015) that CP filed with the Agency identified 23 landowners in the vicinity of the project who draw water from the aquifers. The inventory identified the wells of five landowners who could be impacted by the cuts on the south slope of the Qu’Appelle Valley. The consultants recommended regular monitoring of water levels beginning before construction and for one year once in operation for evidence of adverse impacts to both groundwater and surface water. CP committed to the consultants’ recommendations that mitigation measures be implemented should evidence be found that the wells or surface water have adversely been impacted.

[17] The cuts and fill on the north slope of the Valley will be along an existing coulee. CP states that existing surface water drainage patterns will generally be maintained on the north slope following the construction of the railway line.

Requirements for railway operations and services

[18] The proposed railway line will provide service to one shipper, K+S. The Legacy Mine is scheduled to begin production in the third quarter of 2016 and K+S projects that the production capacity will reach 2.8 million tonnes by 2023.

[19] Rail transportation is critical for potash producers to reach their major markets in the United States, China and Brazil. Given the large volume of potash to be shipped long distances, trucking is not considered a viable alternative.

[20] K+S entered into an agreement with Pacific Coast Terminals Co. Ltd. to construct a new potash export terminal in Port Moody, British Columbia, a destination that is already on CP’s network.

[21] Depending on production levels, one or two unit trains of up to 177 loaded cars will leave the Legacy Mine every day and the same number of empty cars will arrive at the mine.

[22] K+S states that it obtained approval to construct private trackage on its property pursuant to the Saskatchewan Railway Act, Chapter R.1.2 and that it will seek operating approval once the railway is built and inspected by provincial officials.

Agency finding related to the requirements for railway operations and services

[23] As per the Memorandum of Understanding between Transport Canada and the Agency, Transport Canada was notified of CP’s application for the approval to construct the proposed railway line. Transport Canada indicated that based on the information it received, it has no safety concerns at this time.

[24] The Agency has considered CP’s submissions with respect to the requirements for railway operations and services.

[25] Based on the submissions, the Agency accepts that CP chose the shortest and most direct route to the Legacy Mine among the four routes considered, therefore limiting the project footprint. The Agency also accepts CP’s assessment that the proposed route will impact the fewest number of communities, residents and sensitive environmental area.

[26] Further, the Agency finds that the location allows CP to provide service and respond to the needs of K+S.

[27] The Agency is satisfied that the location of the proposed additional railway lines is reasonable taking into consideration the requirements for railway operations and services.

Interests of the localities

Public consultations

[28] CP provided the following information with respect to public consultations.

[29] CP held a public information session on November 12, 2013, which it announced twice in the Moose Jaw Weekly and on the Web sites of the Rural Municipality of Pense (Pense) and the Rural Municipality of Dufferin (Dufferin). No comments were received from the public information session.

[30] On October 1, 2014, CP published a notice in the Moose Jaw Times Herald to inform the population of its application to the Agency for approval to construct the railway line. CP submits that copies of the application were also available at the Moose Jaw Public Library, the offices of Pense and Dufferin and on the Internet. The Agency received no comments during the 30-day consultation period.

[31] Adjacent landowners were contacted by CP or its agents for the assembly of the railway right of way and purchase of land. CP submitted a list of issues raised by landowners adjacent to the proposed railway line. CP states that the landowners raised the following issues: land acquisitions; fencing; restoration in the eventuality of impacts on their water supply; restoration for damage to property and crops during technical investigations; consideration for adjacent lands in designing drainage so as to avoid adversely impacting drainage patterns on these lands; private crossings and property access; continued use of the right of way farmland until the start of construction; and, potential fires from railway operations.

[32] CP submits that it discussed these issues with landowners and addressed them in covenant agreements included in the purchase agreements it signed for the acquisition of the right of way land.

[33] CP states that it contacted individual landowners along the proposed railway line to conduct field interviews to discuss their use and sources of groundwater. CP also met with companies located near the beginning of the railway line at CP’s Indian Head Subdivision to describe the project and to provide details of the crossing at the Kalium Road. CP states that no follow up was required.

[34] On December 18, 2014, CP served a Notice of Proposed Railway Works pursuant to section 8 of the Railway Safety Act on landowners adjacent to the proposed railway corridor and on Pense and Dufferin. Two landowners expressed concerns.

[35] According to CP, it met with one landowner and responded to his concerns about decreased property value, possible train derailments and access to his property with farm equipment. CP explained to the landowner that due to its proximity to industrial development, to CP’s mainline and to the Trans-Canada Highway, the property may in fact increase in value. CP pointed out that potash, a component in fertilizers, was not a dangerous good. CP also states that it explained to the landowner that the crossing to access his property, which will be designed for public use, will have to meet Transport Canada standards.

[36] The second landowner expressed concerns about impacts on groundwater, access to surface water for his livestock, fencing, grass fires from trains and groundwater contamination from creosote ties.

[37] According to CP, it explained to the second landowner that it will monitor his groundwater well during construction and for one year of operation and that it will resolve the problem if the well is impacted. CP submits that it is committed to excavating two dugout wells on the west side of the railway alignment and that it will provide appropriate fencing. CP also submits that creosote is not mobile in soil and would not impact groundwater. With respect to fires, CP states that given that the train speed on the proposed line will be approximately 25 miles per hour and the limited need for braking, fires along such railway lines are uncommon.

[38] According to CP, the Belle Plaine Hutterite Colony is the greatest user of surface water from Rock Lake and the Qu’Appelle River for feedlot operations and irrigation in the project area. CP points out that the Colony did not file an objection to the project during the 60-day notice period under the Railway Safety Act.

[39] In response to the Notice, Dufferin states that it has no objection to the project; however, it transmitted the concerns of certain “ratepayers” that they had not been contacted regarding the potential impacts on their private wells and aquifers. Dufferin requested CP to commit to remediating or compensating “ratepayers” adjacent to the project for any impacts on the water supply or the local aquifer.

[40] CP states that even though it considers these “ratepayers” to be outside the boundaries of the groundwater inventory area which may be impacted on the south slope of the Qu’Appelle River, CP is committed to monitoring the wells of landowners potentially impacted by the railway construction. In response to the recommendations in CP’s Water Users Inventory Report, CP committed to Dufferin that is would mitigate any adverse impacts of the Belle Plaine project.

Railway noise and vibrations

[41] CP submitted an assessment of the potential railway noise and vibrations along the proposed railway corridor. With respect to construction activities, the Environmental Noise and Vibration Report (September 2014) concluded that administrative controls such as minimizing night-time and weekend construction activities, using quieter equipment where possible, providing nearby residents with construction schedules and CP contact information where residents can raise issues and concerns, will suffice to minimize construction noise.

[42] The assessment of potential noise impacts of the railway operations was based on Health Canada (HC) guidelines, day-night sound levels (Ldn) and changes in the percentage highly annoyed (%HA). Train whistles were not included in the numerical analysis. The assessment concluded that the noise levels from the proposed rail operations are predicated to be within the HC guidelines.

[43] CP states that it will install continuous welded rail, premium fastening system, high quality ballast, concrete and wood ties and other required track material to minimise noise and vibrations emissions.

Road access and crossings

[44] The proposed railway line will cross 10 local roads. CP states that several public road crossings will be installed across local roads and that one minimally-used road will be closed as agreed to by the road authority to avoid another crossing. One crossing will require an automated warning system while another will be grade-separated. CP states that it reached agreements with Pense and Dufferin and the Government of Saskatchewan for all of these crossings.

[45] CP states that it agreed to provide private crossings to ensure that landowners continue to have access to their land. CP also states that it entered into confidential agreements with several landowners to eliminate the need for grade-separated private crossings along the deep cut area of the proposed railway line.

[46] CP and the Canadian National Railway Company (CN) entered into an agreement regarding the crossing of CP’s proposed railway line and CN’s Central Butte Subdivision at mileage 25.5.

[47] CP signed crossing agreements with SaskTel and reported being in discussion with other utility companies regarding the other utility crossings along the proposed Belle Plaine railway line.

[48] CP submits that it intends to reach crossing agreements with all the utility companies along the proposed railway line. If agreements cannot be reached with some utility companies, it will apply to the Agency for the authorization to construct the utility crossings.

Municipal, provincial and federal government consultations

[49] CP states that it consulted with Pense and Dufferin formally and informally to discuss the project and to identify and resolve issues regarding the subdivision of land and public road crossings. CP adds that it entered into public crossing agreements with Pense and Dufferin. CP also points out that Pense adopted a resolution in support of CP’s project.

[50] CP met with representatives of the Buffalo Pound Community Council (Council) comprised of the seven communities surrounding Buffalo Pound Lake. The Council expressed concerns that the railway bridge over the Qu’Appelle River would exacerbate flooding of waterfront properties, which occurs periodically in the resort villages of North Grove and South Lake. CP later met with the Council to present its final designs and technical studies. According to CP, the Council is satisfied that the bridge would not increase the potential flooding of communities on the shores of Buffalo Pound Lake.

[51] CP states that it discussed the project with the Province of Saskatchewan Ministers and it filed a letter of support from the Government of Saskatchewan. CP adds that it consulted with provincial government officials on issues of subdivision of land, protection of water supply and heritage/archeological resources.

[52] CP conducted a heritage resources impact assessment of the proposed railway footprint that it submitted to the Saskatchewan Heritage Conservation Branch (SHCB).

[53] Following the submission of the heritage resources impact assessment, the SHCB directed CP to fence archaeological sites close to the proposed railway line and avoid them during construction or to conduct a detailed assessment of the sites if they could not be avoided during construction. SHCB required that two other sites that could not be avoided during construction be mitigated through controlled excavation, recovery and curation of cultural material. CP is also required to have a qualified archaeologist conduct a selective monitoring of cut and fill operations during the construction phase. CP committed to develop an emergency impact management plan with input from the Aboriginal communities in the event archaeological resources are discovered during the railway construction.

[54] CP consulted the Saskatchewan Water Security Agency (WSA), which administers the approval process for the construction and operation of water diversion works pursuant to the provincial Water Security Agency Act.

[55] The WSA indicated that it will review any water diversion works required for the project. Depending on the type of works, their extent and duration and potential impacts on water resources, such works could require regulatory approvals of the WSA. The WSA also indicated that CP would remain responsible for mitigating any adverse impacts.

[56] CP states that it also consulted officials from Fisheries and Oceans Canada with respect to the Fisheries Act requirements and from Environment Canada concerning the federal wetland policy. CP indicates that no approval is required for the railway bridge over the Qu’Appelle River. CP is to develop wetland enhancement/compensation habitat in keeping with the federal wetland policy for wetland areas that cannot be avoided in the construction of the railway line.

Findings related to interests of the localities

[57] The Agency has considered CP’s submissions with respect to the interests of the localities, as well as the comments received by CP, landowners and other local residents. The Agency notes CP’s consultations with municipal authorities and notes that CP received support from the Government of Saskatchewan, Pense and K+S.

[58] The Agency finds that CP has addressed the concerns related to soil stability, drainage patterns and protection of the water supply through the modifications it made to its initial plans and designs, as well as the different measures to which CP committed. The Agency is satisfied that CP’s responses and the mitigation measures it has committed to adequately address concerns regarding access to land and access to surface water for livestock. The Agency is also satisfied that CP’s commitments with respect to fencing, maintenance or improvement of drainage patterns for adjacent landowners, as well as restoration for damages to property or crops will address the concerns raised.

[59] With respect to noise and vibrations, the Agency finds that the mitigation measures proposed in CP’s Environmental Noise and Vibration Report and its updated Environmental Management Plan are sufficient. The Agency finds that the mitigation measures proposed for the railway construction and operations are appropriate.

[60] The Agency also accepts that CP has addressed the concerns of the Buffalo Pound Community Council with respect to the potential flooding of communities on the shores of Buffalo Pound Lake.

[61] In light of the above, the Agency is satisfied that the location of the railway line is reasonable taking into consideration the interests of the localities.

Aboriginal consultations

[62] Prior to issuing a subsection 98(2) authorization, the Agency must also be satisfied that the Aboriginal consultations undertaken have been adequate.

[63] CP submitted a record of its consultations with the following First Nations and Métis: Cowessess First Nation, Day Star First Nation, George Gordon First Nation, Muscowpetung First Nation, Muskowekwan First Nation, Nekaneet First Nation, Piapot First Nation, Red River First Nation, Sakimay First Nation, Pasqua First Nation, Standing Buffalo First Nation, File Hills Qu’Appelle Tribal Council and the Riel Métis Council.

[64] The First Nations communities that CP identified are located within the Treaty No. 4 area.

[65] CP informed the First Nations and Métis that it had filed an application with the Agency for the approval to construct the railway line and it provided the Internet link to the application and supporting documents.

[66] CP’s record of consultations with First Nations and Métis describes the contacts and meetings it held. CP contacted each First Nation and Métis and met with their chief and/or other representatives to present and discuss the project, describe the heritage impact assessment that was conducted and the resulting mitigation measures, and to hear the stories and interests related to the project area. CP then forwarded meeting notes and a copy of the heritage impact assessment report to them.

[67] CP submits that it undertook in-depth consultations with First Nations and Métis. CP maintains that it was diligent in responding to suggestions, comments and issues raised by First Nations and Métis.

[68] Among the issues raised by First Nations and Métis were the cultural/heritage resources. The Pasqua First Nation (PFN) also raised concerns that CP’s project could potentially affect water bodies in the Qu’Appelle Valley and that “these [construction] activities present a serious threat to the future of the Qu’Appelle Valley water system.”

[69] CP states that it responded to a First Nations’ query regarding the potential usefulness of ground penetrating radar (GPR) to search for buried cultural resources by funding a study to evaluate the GPR’s usefulness. CP indicates that it then provided the results to the First Nations. According to CP, an Elder thanked it for acknowledging that the use of a GPR is inappropriate. CP adds that the Elder acknowledged CP’s effort to inform them of decisions and progress on the project.

[70] CP and the PFN also signed a Traditional Monitoring Agreement for the monitoring of construction activities and liaison role between CP and the First Nations and Métis regarding potential issues of cultural resources or burial sites. CP met with members of First Nations to learn more about traditional ceremony protocols that may be appropriate prior to beginning the project construction.

[71] With respect to the Qu’Appelle Valley water system, the PFN stated that its rights to the Pasqua water system are protected by the Pasqua Lake Water Management Agreement (PLWMA) it entered into with the Province of Saskatchewan. CP responded to the PFN that the project’s potential impacts on groundwater resources are anticipated to be local in nature. CP stated that it did not believe that the project located approximately 110 kilometres from the closest Pasqua reserve “would have any material impact on the Qu’Appelle Valley water system” or an impact on any Pasqua reserve land. CP also stated that, as it understood the PLWMA, the project was outside the area covered by the PLWA. CP offered to meet with the PFN once the investigations into the project’s potential impacts on groundwater were completed to present the results of the investigation and the mitigation measures that CP will implement to address the drainage and groundwater issues.

[72] Based on CP’s submission, and considering the fact that the project is located approximately 110 kilometres from the closest Pasqua reserve, the Agency is of the opinion that the project’s potential impacts on groundwater resources are anticipated to be local in nature and would not materially impact the Qu’Appelle Valley water system. The Agency also notes that CP and the PFN signed a Collaborative Agreement establishing the principles and framework for a long-term relationship.

[73] It is clear, based on the evidence, that CP has carried out extensive consultations with the Aboriginal communities. The Agency notes that CP’s record of consultations and documents filed with regard to Aboriginal consultations describe several consultation activities with each community often over more than one year.

[74] Therefore, the Agency is satisfied that the Aboriginal consultations CP conducted have been adequate.