Determination No. R-2023-156
Application to the Canadian Transportation Agency (Agency) by the Canadian National Railway Company (CN) for approval to build a new railway line for its Jansen Spur project
Decision
[1] The Agency approves CN’s application to build a new railway line for its Jansen Spur project, provided it fulfills the conditions set out in Appendix A, which are summarized below:
- CN must inform local communities, as identified in paragraph 1 of Appendix A, about construction timing and activities, and give them opportunities to ask for information and report concerns.
- CN must monitor noise levels and keep them within Health Canada and other established limits.
- CN must meet the commitments it has made to address local concerns about the spur. In some cases, it must also take more specific or stronger measures, as set out in paragraph 3 of Appendix A.
- CN must promptly inform local Indigenous communities of any findings or developments that could affect potential or established Indigenous or treaty rights.
- As it fulfills each condition, CN must keep the localities informed, including Indigenous communities, share relevant documents, and provide a way to comment or raise concerns.
- CN must provide documents related to these conditions to the Agency upon request.
Overview
[2] CN applied for approval to build 47 kilometres of new railway line near the village of Jansen, Saskatchewan (Jansen Spur). The Jansen Spur would run from mile 102 of an existing CN line – the Watrous Subdivision – across land west of Jansen, in the rural municipality of Prairie Rose, and east of the town of Nokomis to a joint access spur that leads to a potash mine. The access spur and mine are both owned by BHP Canada Inc. (BHP). Once they are built, BHP will let CN and Canadian Pacific Kansas City Railway use the access spur, so that both companies can transport potash from the mine for BHP.
The law
[3] Under the Canada Transportation Act, CN requires the Agency’s approval to construct a railway line such as the Jansen Spur. The Agency must decide whether the spur’s proposed location is reasonable, taking into consideration:
a) CN’s operational and service requirements; and
b) the interests of the localities that the spur would affect.
The Agency’s responsibility is to balance these two considerations in deciding whether to approve railway line construction.
[4] To determine the interests of the localities, including the interests of Indigenous communities in the area, the Agency must also determine whether the railway company has engaged appropriately and meaningfully with the localities, including Indigenous communities, and whether and how it has addressed their concerns.
[5] In addition, the Government of Canada has a legal duty to consult and, where appropriate, accommodate Indigenous communities when it is considering approving activities, like railway line construction, that could adversely affect potential or established Indigenous or treaty rights. The Agency’s processes may be used to fulfill that duty. As a result, the Agency, acting on behalf of the Government of Canada, must consult Indigenous communities potentially affected by railway line construction projects such as the Jansen Spur project. The Agency may also consider the applicant’s engagement activities in determining whether the duty to consult has been met.
Issues
[6] Accordingly, the Agency will address the following five issues:
- What are CN’s operational and service requirements in the area and is the location of the Jansen Spur reasonable to meet those requirements?
- Did CN engage appropriately and meaningfully with the localities, including Indigenous communities, that may be impacted by the Jansen Spur?
- What are the interests of the localities, including Indigenous communities, in the area; how did CN address concerns raised by them; and is the location of the Jansen Spur reasonable considering the impacts it will have on them?
- Has the Government of Canada’s duty to consult and, where appropriate, accommodate Indigenous communities whose rights could be adversely affected by the Jansen Spur been fulfilled?
- On balance, is the Jansen Spur location reasonable, considering CN’s operational and service requirements and the interests of the localities?
Analysis
1. What are CN’s operational and service requirements in the area and is the location of the Jansen Spur reasonable to meet those requirements?
[7] The Agency finds that the location of the Jansen Spur is reasonable to meet CN’s operational and service requirements in the area.
[8] From an operational perspective, the location of the Jansen Spur allows CN to connect its Watrous Subdivision to BHP’s mine access line while following the best possible route given the terrain. This includes current land use and conditions. The location addresses CN’s current and long-term requirements for serving BHP, the only client on the spur at this time. CN has raised no operational and service requirements other than those related to the mine.
[9] CN considered six other routes for the spur and chose the one with the most practical terrain for construction and operations. In particular, CN prioritized the route that would best avoid steep grades and bodies of water.
[10] The proposed route also minimizes route length and the need for crossings. While the route requires CN to build 40 private crossings and will cross 47 utilities, mainly underground, the alternative routes would have required more crossings. CN has committed to consolidating or limiting crossings where possible and to meeting federal crossing requirements.
[11] CN’s application also shows that the spur location meets CN’s service requirements. CN selected the spur location in collaboration with BHP. CN’s plan for serving BHP aims to have the spur in place by BHP’s requested date of September 2025, which would support the final phase of BHP’s mine construction. The plan is to start with four unit trains per week, and the application states that the number of trains can be varied for BHP’s needs. This supports CN’s submission that it has considered both the initial needs of the mine and possible future mine expansion.
2. Did CN engage appropriately and meaningfully with the localities, including Indigenous communities, that may be impacted by the Jansen Spur?
[12] Yes, the Agency finds that CN engaged appropriately and meaningfully with the localities, including Indigenous communities, that may be impacted by the spur.
[13] The Agency requires railway companies applying to build a new railway line under the Canada Transportation Act to first engage localities who may be affected by the line. The railway company’s application must contain detailed information about all engagement activities with the localities, including Indigenous communities, and provide an outline of any issues or concerns that they raised and any commitments or responses that the railway company made to address them.
Engagement with the localities
[14] While railway companies are generally expected to lead their own engagement activities on a project, early outreach on the Jansen Spur was led by BHP. BHP had an existing stakeholder network in the area, including a group of property owners closest to the spur, local municipalities, non-governmental organizations, and Indigenous communities. BHP engaged this network, and other local residents, through a variety of outreach activities that included the rail aspect of the mine project. Key events included information sessions held in Jansen and Nokomis in December 2017 and March 2018. The Agency finds that it was appropriate for CN to rely on BHP’s engagement activities and to base its own outreach on the Jansen Spur on BHP’s earlier efforts.
[15] CN’s own outreach on the Jansen Spur included essential stakeholders and an acceptable variety of activities. Specifically, CN’s application shows that it engaged local municipalities, their leaders, and residents through means such as meetings, open houses, and a dedicated website area. Key meetings and the open houses took place in April 2022, and after the open houses, CN accepted written input until the end of May 2022.
Engagement with Indigenous communities
[16] CN provided evidence that it sent information about the spur to six Indigenous communities residing in and around Jansen as part of its engagement activities, and met with those communities who requested meetings. At the Agency’s request, CN also contacted an additional six communities. The 12 communities that CN ultimately engaged, representing all those within a 100-kilometre radius of the spur location, were:
- Day Star First Nation
- Kawacatoose First Nation
- Fishing Lake First Nation
- Muskowekwan First Nation
- George Gordon First Nation
- Beardy’s and Okemasis’ Cree Nation
- One Arrow First Nation
- Kinistin Saulteaux Nation
- Yellow Quill First Nation
- Métis Nation-Saskatchewan Western Region 2
- Métis Nation-Saskatchewan Western Region 2A
- Métis Nation-Saskatchewan Eastern Region 2
3. What are the interests of the localities, including Indigenous communities, in the area; how did CN address concerns raised by them; and is the location of the Jansen Spur reasonable considering the impacts it will have on them?
[17] The Agency finds that, provided CN meets the conditions set out in Appendix A, the location of the Jansen Spur is reasonable considering the impacts it will have on the localities, including Indigenous communities. The Agency notes that, in this instance, the spur location has local support and that CN has feasible plans for mitigating potential impacts.
[18] To identify the interests of localities, including Indigenous communities, the Agency looks at the concerns that they have raised about the project during the railway company’s engagement activities and how the railway company has responded. The Agency also holds its own consultations on railway line construction applications: its public consultation on the Jansen Spur was held over 30 days in February and March 2023, and it carried out consultations with the 12 Indigenous communities potentially affected by the Jansen Spur in March 2023.
The localities’ interests
[19] CN presents evidence that the localities expect the spur, and the mine it will support, to bring local economic benefits, including jobs. This is clearly indicated in the 15 letters of support for the spur that CN provided with its application, mainly from local governments, but also from a local Chamber of Commerce and several Members of the Legislative Assembly of Saskatchewan.
[20] In the Agency’s public consultations, no one objected to the spur. In fact, there were no comments submitted during the formal consultation period. Outside that period, one landowner submitted a letter, discussed in the Crossings section below.
[21] While there is no record of any serious opposition to the spur, CN’s engagement records show some local concerns in three areas arising from construction and operating impacts from the spur, which CN has committed to addressing:
a) noise and vibration;
b) crossings that CN will build; and
c) environmental impacts, especially on water and crops.
a) Noise and vibration
[22] CN’s application shows that both it and BHP have already taken steps to prevent railway noise and vibration from affecting homes near the spur. CN chose the proposed route in part to maximize setback from nearby houses. Furthermore, BHP has land option agreements with landowners who are most directly affected by the spur location.
[23] CN provided a noise and vibration assessment report by Stantec Consulting Limited. Stantec looked at 33 homes closest to the project right-of-way and considered various equipment over the different construction stages and a variety of noise sources, including pass-by noise, wheel squeal, crossover/diamond/turnout noise, train whistles, and idling locomotives. The report estimates the noise and vibrations that the spur construction and operation will generate, and finds that they will be within Health Canada and other established limits. Furthermore, in its engagement sessions, CN committed to quickly and proactively address noise and vibration issues as they arise.
[24] Although noise and vibration are inevitable with the construction and operation of the Jansen Spur, the Agency finds that CN (and BHP) has made meaningful efforts to prevent noise and vibration from affecting localities around the spur. Based on the evidence, expectations are that the noise and vibration from constructing and operating the railway line will be within Health Canada and other established limits and, thus, reasonable at this location. In the absence of any evidence to the contrary, the Agency accepts the findings of the Stantec study. Understanding that CN is committed to keeping within the acceptable levels of noise and vibration that the study anticipates, the Agency also accepts CN’s argument that it does not need a Jansen Spur-specific noise and vibration mitigation plan.
[25] That said, in recognition that the Agency’s determination of the reasonableness of the location of the railway line is, in part, based on predictions of future noise and vibration, CN must carry out regular monitoring and take the steps related to noise set out in the conditions in Appendix A to ensure that noise levels remain within Health Canada and other established limits.
b) Crossings
[26] Although CN’s application shows that it chose the spur route with an intent to minimize the number of crossings needed, nonetheless, the route requires CN to build private and other crossings on local land. Land near the spur is largely agricultural, and CN’s engagement records, and one letter of support, show some call for wide crossings that can accommodate oversized farm equipment. CN’s records, and one letter sent to the Agency from a Prairie Rose landowner, also indicate some concerns about crossing safety.
[27] In response to crossing concerns, CN committed to consult locally on crossing designs, while stating that Transport Canada sets the standards for crossings. CN also committed to meeting all crossing safety regulations.
[28] The Agency finds that CN has taken appropriate steps to minimize the number of crossings needed and acknowledges CN’s commitments to work with landowners on crossing issues while meeting all relevant crossing standards. Furthermore, to ensure that the crossings built contribute to a spur location that is reasonable for the localities, CN must promptly respond to crossing issues and meet needs-based requests for crossings that accommodate oversized farm equipment if safety regulations allow, as set out in the conditions in Appendix A.
c) The environment (water, crops and birds)
[29] Although the Jansen Spur does not require a federal impact assessment under Impact Assessment Act regulations, the Agency must still consider a new railway line’s possible environmental impacts where concerns of an environmental nature are raised as part of the interests of the localities, as is the case with the Jansen Spur. Some environmental issues related to water and crops were raised by localities, while CN has itself raised the importance of timing construction activities to avoid impacting local birds.
[30] Although the proposed corridor includes lakes, wetlands, and areas prone to seasonal flooding, CN’s application states that the proposed spur route is the least disruptive to the surrounding environment, and that the alternatives it considered had similar land conditions, including some water features. In addition, CN’s engagement records show local concern about whether the spur could affect the Prairie Rose community drinking water well near Jansen.
[31] CN indicates that it chose a spur route that avoids certain water features, including a lake and that the design includes culverts that can manage 100-year flood flows. CN also committed to testing the Prairie Rose well before and after constructing the spur, and to install a new well if needed.
[32] CN’s engagement records show local concern that construction equipment could carry invasive species into the area, or that somehow such species could spread. People showed concern, in particular, about clubroot, which is a soilborne bacterial disease that can seriously damage certain crops.
[33] In its engagement activities, CN made commitments to prevent the spread of invasive species, particularly clubroot. It indicated that it has a vegetation control program and will seed grass similar to the local grass found along the right-of-way of the spur. It promised to build into the spur construction a comprehensive plan for protecting farmland from clubroot infestation.
[34] The Agency finds that CN is committed to mitigating and otherwise addressing the spur’s potential environmental impacts on local water and crops, as raised by the localities. CN has also indicated that it will avoid bird nesting times that could be impacted by construction activities. CN must meet these commitments and protect local water resources, crops and migratory birds as set out in the conditions in Appendix A.
Indigenous communities’ interests
[35] None of the Indigenous communities expressed opposition to, or specific concerns about, CN’s Jansen Spur plans during engagement activities with CN. Some communities expressed an interest in the potential economic opportunities that spur construction might offer, and CN committed to continued engagement on that subject. In particular, in its engagement with the Métis Nation-Saskatchewan Western Region 2A, CN committed to providing project updates, sponsoring a traditional knowledge study, and sharing business participation or potential employment opportunities.
4. Has the Government of Canadas duty to consult and, where appropriate, accommodate Indigenous communities whose rights could be adversely affected by the Jansen Spur been fulfilled?
[36] Yes, based on the processes described above, the Agency is satisfied that the duty to consult has been fulfilled. Both CN and the Agency consulted the 12 Indigenous communities potentially affected by the Jansen Spur and the Agency is satisfied that the consultations conducted were appropriate and meaningful. None of the Indigenous communities informed the Agency of any impacts on potential or established Indigenous or treaty rights or voiced opposition to the spur location during its consultations. Subsequently, one community, Métis Nation-Saskatchewan Western Region 2A, informed the Agency that it has no current objections provided CN keeps its engagement commitments to the community, as noted in paragraph 35.
5. On balance, is the Jansen Spur location reasonable, considering CN’s operational and service requirements and the interests of the localities?
[37] Yes, upon balancing CN’s operational and service requirements and the interests of the localities, the Agency finds that the Jansen Spur location is reasonable, provided CN meets the conditions set out in Appendix A. This balancing includes considering the weight to be given to each issue raised and an assessment of both the benefits and the drawbacks for all involved.
[38] In the present case, CN has provided a strong rationale that its requirements for railway operations and services favour spur construction. CN’s engagement records, as well as the Agency’s consultation record, indicate that the localities either support or accept the spur location, although they have expressed some concerns about railway noise and vibration, crossings and impact on the environment.
[39] The Agency finds that the localities’ concerns may be mitigated through conditions, and when weighed against the benefits to other interests of the localities and for railway operations and services, the Jansen Spur location is reasonable.
Conclusion
[40] The Agency finds that the Jansen Spur location is reasonable considering CN’s operational and service requirements and the interests of localities the spur could affect.
[41] In summary, local support for the spur has remained consistent through several years of engagement activities that provided, in the Agency’s view, appropriate and meaningful opportunity for localities to voice their opinions. Local Indigenous communities have also been appropriately and meaningfully consulted, and none raised concerns that the project might impact their rights.
[42] Where the localities did bring concerns forward to CN, about noise, future rail crossings, and environmental impacts, or expressed an interest in construction and partnering opportunities, CN has made commitments to address them. The Agency has imposed those commitments as conditions to ensure CN is accountable to meet them.
[43] In the end, when the Agency weighs CN’s operational and service requirements and the interests of the localities, it finds clear evidence of positive outcomes for both the railway company and the relevant communities. The few concerns that were raised are amenable to mitigation measures.
[44] For the reasons set out above, the Agency approves CN’s application to build a new railway line for its Jansen Spur project, from mile 102 of the Watrous Subdivision to the south end of BHP’s joint access spur as detailed in the application, provided CN fulfills the conditions set out in Appendix A.
Appendix to Determination R-2023-156
Conditions
1. At the outset of each stage of construction on the Jansen Spur, CN must inform local communities about the timing and on-site activities that will be involved. It must provide contact details where people can reach CN for more information or to report concerns, and must track those concerns and CN’s responses to them. The local communities for this and the following conditions include:
a) The villages of Jansen and Drake and the towns of Nokomis, Lanigan, LeRoy, and others in the regional municipalities of Prairie Rose, Usborne, and Mount Hope, Saskatchewan.
b) The 12 Indigenous communities that form CN’s Indigenous consultations network for Jansen Spur activities, as listed in paragraph 16 of the determination.
2. CN must routinely monitor noise levels during each construction stage and the first year of operations to ensure that noise levels stay within Health Canada and other established limits. It must use an independent qualified expert and follow industry standard practices.
3. CN must meet the commitments it has made in its engagement activities to address local concerns about the spur. In some cases, the Agency is also requiring more specific or stronger measures, as follows:
a) Before constructing any private crossings, CN must consult local communities on crossing designs. Where people expressed a need for crossings that can accommodate oversized farm equipment, CN must meet this need, provided it can do so while respecting applicable crossing safety standards.
b) CN must mitigate the environmental impacts of constructing and operating the spur and minimize residual impacts. The scope of CN’s mitigation efforts must include:
i. groundwater and waterbodies: CN must monitor for possible impacts on the drinking water in Prairie Rose (community well, near Jansen). It must test the well water before, during, and after spur construction, using a qualified, independent expert and following industry standard practices. It must maintain reports on the monitoring and test results. Furthermore:
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- If the expert finds the well water is significantly impacted by spur construction, the expert’s report should include recommendations for ensuring Prairie Rose has a sufficient supply of safe drinking water, in line with Health Canada drinking quality guidelines.
- Mitigation efforts could include replacing the Prairie Rose community well if the independent expert recommends it.
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ii. migratory birds: CN must time construction activities to avoid harming or disturbing migratory birds, their nests, and their eggs, in accordance with the Migratory Birds Convention Act.
iii. protecting agricultural land from invasive species: CN must develop and implement a comprehensive plan for protecting farmland from clubroot infestation during the spur construction. CN must consult a qualified independent expert on this plan. It must also consult local communities on the plan and give them opportunities to provide comments and suggestions.
4. As it builds and operates the spur, CN must promptly inform local Indigenous communities of any findings or developments that could affect potential or established Indigenous or treaty rights.
5. CN must keep the localities, including Indigenous communities, informed as it fulfills each of the above conditions. It must develop and implement a communications plan or plans for sharing the documents relevant to these conditions, including plans, monitoring and testing results, expert reports, and mitigation reports. The communication plan(s) should:
a) set out the methods and schedule CN will use to keep communities informed and share documents; and
b) include ways for the communities to provide comments or raise concerns about the information CN shares.
6. CN must provide its communication plan(s) and documents related to these conditions to the Agency upon request.
Member(s)
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