Province Let NSP, Genesee & Wyoming Edit Rail Fees Report

Back in May, I reported that the provincial government had contracted consultant Neil MacNeil to look into the situation of property owners along the disused Sydney Subdivision of the Cape Breton and Central Nova Scotia (CBNS) short line, which is owned and operated by US-based Genesee & Wyoming (G&W).

MacNeil’s report was released in September. You can read it here:

FINAL Report Railway Crossing Study


MacNeil sums up the concerns of property owners this way:

Property owners along Route 223, adjacent to the Sydney Subdivision of CBNS, have witnessed limited rail activity for several years and no rail activity for the past two years. Some of the property owners have expressed concerns over the annual crossing fees charged by G&W. They feel these charges are not warranted given the lack of traffic on the line since discontinuance. In their view the prospect for rail operations returning in the near future are low.

In addition, some property owners expressed concern over the fees charged by utility companies, in particular, Nova Scotia Power, to provide new services over the railway track. Property owners have suggested they wish to invest substantially in developing their private properties but they are hampered by the high costs being charged by CBNS and Nova Scotia Power to access their land over the railway’s right of way. The property owners believe that there is lost opportunity to the local economy in that construction activity is delayed and the municipality cannot realize increased municipal tax revenue under the current situation.

MacNeil offered a couple of possible solutions. In terms of installing new power lines, he said that “staff at Nova Scotia Power stressed their desire and willingness to assist in coming up with innovative solutions, highlighting that they would look at all options to reduce these costs in collaboration with the property owners.”

One option would be to “build a powerline across a railway once and then extending the line on the other side in order to serve multiple customers.”

As for the annual crossing fees, MacNeil said property owners could request that the province amend the regulations under the Railways Act which establish the $300 fee. If they were not satisfied with the outcome of such a request, they could then turn to the NS Utilities and Review Board (NSUARB) “pursuant to Section 39 of the Nova Scotia Railways Act or file a joint complaint with the NSUARB pursuant to Section 83 of the Public Utilities Act with “supporting documentation that the fees are unreasonable or unjustly discriminatory.”



That’s basically the sum total of the report, which is seven pages long.

But those property owners who had banded together in what I still consider the unfortunately named Cape Breton Railway Victims Association were suspicious MacNeil’s report was subject to editing by the provincial government.

After speaking with them, I submitted a freedom of information/protection of privacy (FOIPOP) request to the TIR asking to see the “unedited” version of the report and correspondence surrounding it. I was told that a similar request was already being processed and asked if I’d be willing to accept those results as part of the response to my FOIPOP.  I agreed, and so this week I received notice that those results had been posted to the provincial access to information website.

The request, submitted by a “political party” (hint: probably not the Liberals) on 12 September 2017, was for:

…a copy of the report along with any and all correspondence delivered by Neil MacNeil to the department of Transportation and Infrastructure Renewal regarding the issues/complaints of the Cape Breton Railway Victims Association or the UARB. Please include documents dated between the timeframe of January 1, 2017 until present.

In his response letter, Deputy Minister Paul T. LaFleche, Ph.D., P.Geo, FGC (I had to look that last one up, it means “Fellow of Geoscientists Canada”) advised that the report had not been finalized until 27 September 2017, so if the applicant wanted a copy, s/he should contact the TIR directly.

Drafts of the report — which are what I had hoped to see (and still hope to see) — were redacted on the grounds that they were “advice by or for a public body or minister” but the emails show the report was edited, and not just by the TIR. For example, here’s Shannon Delbridge of the TIR writing to MacNeil on 18 August 2017:

Great – I have made some suggested edits to the report but think we are about there!  Can you review it all carefully and see if you like the edits or want to make changes … it is your report after all … just trying to be helpful and ensuring there is good clarity for the uninitiated reader.  Once you give me the thumbs up I will send it to [REDACTED 20(1)] to review and then on to others internally to review.  I will take it from there [REDACTED 20(1)]

(Information redacted under Section 20 (1) is withheld to protect personal privacy.)

On 10 September 2017 MacNeil pushes back against the edits, writing to Delbridge:

Shannon, Just read your note of Aug. 29th. [REDACTED 20(1)]
Anyway here is my Executive Summary and final report….i.e. no more edits from you. I think you have to accept that this is my report…warts and all!!!

Delbridge’s response, also sent on 10 September 2017, makes it clear who the edits are actually coming from:

The last version I sent you included the changes from NS Power so we need to work from that one. It also included a sentence from G&W after they reviewed it.

Interestingly, elsewhere in the emails MacNeil seems seriously annoyed by requests from the property owners to see his report, prior to its publication. On 22 February 2017 he wrote to Delbridge:

Shannon, Good Wednesday morning. I returned safely from my meetings in Cape Breton….somewhat battered and bruised. This group of “victims” are frustrated (angry). They were less than satisfied with my meetings especially when I refused their requests (many demands) that I do media with them. In particular, they wanted me to do interviews with the CBC radio [REDACTED] of the Spectator, Local Express and the Cape Breton Post. They also “requested” to review my reports before I submitted them to the department. Again, I declined to do so. I will have my monthly report this week. I am waiting on responses from the CTA regarding rail charges in other provinces. You can reach me at [REDACTED} or my cell at [REDACTED]

Of course, “[REDACTED] of the Spectator” is yours truly. I’m later accused of asking CBRM District 6 Councilor Ray Paruch for MacNeil’s phone number. I don’t actually remember doing this, although I did discuss the issue with Paruch (who owns property along the rail line). It wouldn’t have occurred to me to ask MacNeil about the contents of a report he was still working on, though; I would have known he’d refuse to discuss it.

I rate a third mention on 31 May 2017:

Shannon, Attached is the report. [REDACTED] and group are continuing to call “demanding” my findings and claiming that they will call the Minister, the Premier and having [REDACTED] of the Spectator file an FOIPOP. They are persistent. However, I have told them that I will not release my report nor will I discuss it with them until my client directs me.

I could accept the idea that uppity citizens and nosy reporters had no right to review government-commissioned consultants’ reports prior to publication if that prohibition applied equally to private companies directly implicated in the reports.

What value do such reports really have if government is free not only to edit the results, but to invite others to edit them as well?

The icing on the gravy is that the government then hid the precise edits by redacting the draft versions of the report from the information it released on the grounds that they constituted “advice by or for a public body or minister.”

Take that to its logical conclusion and all government-commissioned reports could be considered “advice to a minister.” I guess we can consider ourselves lucky that hasn’t occurred to the provincial government…yet.

2017-04845-TIR_DisclosureLog Package