24 December 2010

Endorsement Not Worth a Cent

Langley British Columbia - Dear Editor,
 
Tucked away on page A14 of your Tuesday paper was a very interesting blurb from exactly a decade ago:  "Langley City Council Endorsed TransLink's Suggestion of a Rail Overpass at Glover Road, But Said it Would Not Pay a Cent for it."
 
Wow.
 
Right on.
 
As we enter the second decade of this century, what went wrong after this excellent endorsement in December 2000? The following is likely what could have happened if the City of Langley had known about three important documents:
 
The 1907 Langley, Tram, Power, and Light Bylaw (as it applied to Langley prior to the breakaway of the City in 1955, is still valid in the Township of Langley and should therefore also be valid "mutatis mutandis" in the City of Langley).
 
The provisions by which BC Hydro developed, designed, and built a temporary relocation of this railway line in 1968, getting out of downtown Langley, Glover Road, and Michaud Crescent.
 
The 1986 Main Agreement between BC Hydro and Canadian Pacific Railway, whereby Canadian Pacific Railway shares the use of the right-of-way and track with Southern Railway of British Columbia. (This is actually how the situation is defined on page 60, Section 3.5.2 of Foundational Paper # 4, Strategic Review of Transit in the Fraser Valley, December 2010, by the Ministry of Transportation and Infrastructure. I would suggest to you that even calling it "the CPR line" is not really correct, it ought to be called the Southern Rail line, because this company has prior rights.)
 
Note that because of the lack of information 10 years ago, what could have happened, did not happen. This is therefore purely "hypothetical", and I realize full well that one cannot turn the clock backwards easily.
 
City Council told TransLink that their position (of not paying a cent) is enshrined in the provisions of the 1907 Langley Tram, Power, and Light Bylaw, the temporary relocation of the BC Hydro Railway in 1968, and the Main Agreement struck between BC Hydro and Canadian Pacific Railway Railway in 1986.
 
TransLink agrees with the City of Langley's position, and advises Southern Railway of British Columbia and Canadian Pacific Railway accordingly.
 
Quite reluctantly, the railways agree to this view, and decide to fund the much needed overpass project.
 
A railway overpass is designed and built on the Langley Bypass just west of Glover Road. Hurrah!
 
Now, why-o-why was this approach not taken? May I suggest the following causes for the mess we continue to have in Langley?
 
In 1955, when the City broke away from the Township, nobody bothered to give the new jurisdiction a copy of the 1907 bylaw. The Township staff did not do it because they had forgotten about it, the brand new City staff did not ask for it because they did not know that such important document existed, and BC Hydro did not volunteer to give it, maybe that was the problem. The Township's copy of the bylaw was kept in the vault in Murrayville. Only shortly before 2009, it was rediscovered, and then it was evaluated and considered valid by the Township of Langley's legal councel Bull Housser and Tupper. (Senior City staff confirmed to me last year they do not have it.)
 
In 1986, BC Hydro did not adequately advise Canadian Pacific Railway about the 1907 Langley Tram, Power, and Light bylaw either, nor the similar bylaw for the District (now City) of Surrey. If CPR had known about these bylaws, they would likely not have "bought" the line from BC Hydro. This may really be the fatal flaw, an Achilles heel, of that main Agreement. Why? Because passenger rail service is still possible on this line. Although the reintroduction of passenger rail service almost lapsed last year (with the 21-year clause), Mayor Green ensured that it did not lapse in August 2009. Now that passenger rail service (meaning "community rail service" is once again a possibility, I would suggest that Canadian Pacific Railway already realizes that they bought themselves a dud in 1986. I want to be as blunt as that. Why? Because it is impossible to run a scheduled passenger rail service on the same single track as an entirely unscheduled container/coal rail service to Roberts Port. This means that something has to give, somehow. I believe that eventually, CPR will by themselves see the need to move away, sometime after passenger rail is reintroduced. Perhaps that is why the push for railway overpasses on this stretch of the Roberts Port Railway Program is so tremendous. Perhaps that is also why the MOTI's Strategic Review of Transit in the Fraser Valley is so extremely negative about the reintroduction of community rail.
 
Since having become involved with the opposition to the Mufford Crescent Overpass project in early 2009, I have thought a lot about whether the "federal jurisdiction" of the railway line through Langley is legal. Why? The BC Electric Railway was originally under provincial jurisdiction, through the B.C. Ministry of Municipal Affairs' Engineering and Inspection Branch, just like Southern Railway of BC still is, and the short remaining portion of BC Rail also is. Canadian Pacific Railway and Canadian National Railway are both under federal jurisdiction, through the Canadian Transportation Agency's Railway Directorate.
 
I have serious questions how the provincial jurisdiction of the line through Langley was changed to a federal jurisdiction. Why? Because Southern Railway of B.C. still operates on the line, as on the rest of its Fraser Valley Subdivision, all the way to Chilliwack, via Huntingdon. Perhaps this "change in jurisdiction" was not all done above board, was done improperly, without notification of the municipalities that had the valid bylaws, and perhaps it should and could even be challenged, in court.
 
Why is the matter of jurisdiction so important? Because the CTA establishes rules for the allocation of costs for overpasses and crossings on all railways under its jurisdiction throughout Canada. All railway lines in Canada have "charters", either federal charters (like CP Rail), or provincial charters (like BC Rail), because the latter does not leave the province of BC. But the railway line through Langley does not have a charter, perhaps the only remaining railway line in Canada without one. A series of municipal bylaws is its charter, which were agreements between Vancouver Power Ltd. and the Districts of Delta, Surrey, Langley, Matsqui, Sumas, Chilliwack, and the Village of Abbotsford, around 1907, and perhaps also the (then) City of Chilliwhack. (The north-south railway line through Cloverdale was the other railway line under these rules, in terms of the 1888 Municipal Act of B.C., not under any federal or provincial Railway Act.) These 1907 bylaws clearly show who will pay for the costs of overpasses, like the 264th Street overpass directly north of Gloucester. These were going to be paid solely by Vancouver Power Ltd., the company that later became BC Hydro.
 
So if the 1907 bylaw is still valid in the City of Langley, the overpass on the Langley Bypass just west of Glover Road would be completely funded by BC Hydro. As I wrote to you the other day, BC Hydro actually promised an overpass to Mayor Poppy of the Township of Langley in 1968. By implication, the 196th Street Overpass and the 192nd Street Overpass that are now being proposed, would also be funded by BC Hydro, and not a cent by the City of Surrey, the City of Langley, and the Township of Langley.
 
Perhaps the whole multiparty Memorandum of Understanding, in which Minister Erickson was involved for a signing ceremony at the Township of Langley, is also problematic because it may not have given precedence to this situation. As said before, the CTA may not have seen these 1907 bylaws, and once again, if these documents were kept away from CTA staff (whether on purpose or out of ignorance), how would they have known? I once wrote an e-mail to someone at CTA in Ottawa, and I have yet to receive an answer after more than a year and a half.
 
The question remains:  If the City of Langley was correct in December 2000, why are things so different now? Not only has the City given away their birthright for a bowl of pottage at the Langley Bypass west of Glover Road, where a BMW dealership is being built so that it will be much more expensive to ever build a railway overpass there, but they have also embraced (conked in) for sharing the costs of the 196th Street combo project at a site that is poorly thought through, to say the least. And so have the Township of Langley. And so have the City of Surrey. A lot of things went wrong in this decade.
 
Sadly, yours truly,
 
Jacob de Raadt P.Eng.