PART 5 – DIVISION 1 OVERVIEW

Building High-Speed Rail Faster

Adjustments to the Expropriation Process for the Initiative

Given its nature as a linear infrastructure project as well as its magnitude and complexity, acquiring lands for the high-speed rail (HSR) initiative will pose unique challenges, including:

  • High volume of land transactions: Thousands of parcels of land will need to be permanently or temporarily acquired across two provinces and through hundreds of municipalities and cities.
  • Tight and reduced timelines: The Government has set ambitious timelines for the start of the construction and acquiring lands in a timely manner is essential to meeting those timelines.

Transport Canada anticipates that expropriation will be an essential tool to acquire the necessary lands. Consistent with policy intent at the time, legislative measures adjusting the process outlined in the Expropriation Act to address some of the challenges are being proposed:

  • Removal of prerequisite for expropriation requests: Alto will not need to prove unsuccessful attempts to purchase land before seeking expropriation, ensuring timely requests to the Minister of Transport can be made.
  • Removal of Governor in Council approval: The Minister of Public Works and Government Services will be able to commence the expropriation process on the basis of the opinion of the Minister of Transport.
  • Abbreviated public notices: Notices of Intention to Expropriate will still be registered in their entirety, but for publication in the Canada Gazette and newspaper, it will be possible to publish them in an abbreviated form, focusing on essential information such as the location and details of the registration at the office of the registrar for the county, district or registration division in which the land is situated.
  • Digital notifications: Allow certain expropriation-related notices to be sent via e-mail.
  • Public hearings: The requirement to hold a public hearing if an objection to a contemplated expropriation has been received will not apply in the context of the initiative. A person may still object to an intended expropriation in writing.
  • Extended decision periods: The timeline for confirming expropriations will be extended from 120 days to two years as expropriation processes will be done for large bundles of parcels of lands and given the size and scope of the project, sufficient time is needed for the successful completion of each process.
  • Fair appraisal rules: Any unauthorized work after a Notice of Prohibition on Work has been registered will not be taken into account when determining any increase in value of the expropriated interest or right.

Allow Land Acquisition, Including Through Expropriation, and Notices of Prohibition on Work to Proceed Prior to an Impact Assessment Decision

The section 8 prohibition under the Impact Assessment Act (IAA) requires that a federal authority not “exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a designated project to be carried out in whole or in part” until after a decision that an impact assessment (IA) is not required, or a positive IA decision statement has been issued.

For HSR, this prohibition creates some uncertainty for land-related decisions that would be made pursuant to an Act of Parliament (e.g., expropriation). The proposed measure would clarify that land acquisition, including through expropriation, for HSR will not be subject to section 8 of the IAA. This is intended to provide greater certainty and transparency as to whether the prohibition applies, help facilitate earlier land acquisition and expropriation, and manage cost increases associated with land availability. Furthermore, private proponents can acquire land in advance of a federal IA decision, and provincial proponents can acquire lands and expropriate pursuant to provincial expropriation legislation without falling under this prohibition.

Once the preferred alignment is known, speculation will impact the cost and availability of land needed to make HSR a reality. Another proposed legislative measure is the registration of notices of prohibition on work, which would prohibit certain work activities on lands that are subject to such notices. As with expropriation and other land acquisition decisions, the Act would clarify that section 8 of the IAA would not apply to decisions related to these notices of prohibition on work.

Unless otherwise authorized, work would not take place on lands acquired until the alignment is determined, and necessary IA and regulatory review requirements are met. Clear communication will be essential to help Canadians understand that any early land decisions are about preparation and efficiency, not bypassing the federal IA requirements. By aligning land decisions with the needs of this initiative, the initiative can be better positioned to deliver benefits while respecting regulatory requirements.

Approach to Assessment of the Initiative Under the Impact Assessment Act

Canada intends to deliver the benefits of HSR as a series of “segments” which, once integrated and constructed, will collectively form the HSR network. Advancing HSR in segments between certain city pairs will allow Canadians to benefit from more frequent, reliable and faster intercity train services sooner.

Under the Physical Activities Regulations of the IAA, a railway line is considered a "designated project" requiring an IA if it involves 50 km or more of new right-of-way. To benefit from a robust planning process and avoid perception that the segmented approach to implementation has been proposed to circumvent federal IA requirements, this measure clarifies that all segments (each complementary, but distinct in purpose) would be subject to federal IA requirements.

Any ambiguity in how the IAA will apply to HSR has the potential to create uncertainty and delays. By setting clear rules upfront, this measure minimizes these risks and promotes transparency with Indigenous groups and the public that all segments will be subject to federal IA requirements.

Declare the Railways Constructed for the High-Speed Rail Network for the General Advantage of Canada

The proposal is to have a legislative declaration stating that the railways constructed for the HSR network are considered works for the general advantage of Canada. This declaration would use the authority given in paragraph 92(10)(c) of the Constitution Act, 1867, to clarify and confirm federal jurisdiction over the railways for all segments in the initiative, even those that are located entirely within a single province.

Although a declaration is not required for Canada to have constitutional jurisdiction over the HSR network, it would provide added confidence, clarity, emphasize federal leadership, and foster collaboration while reducing the likelihood of legal disputes. This is particularly important to confirm that the declaration will not undermine provincial laws or diminish the need for cooperation between governments.

This type of declaration has been used in past Canadian initiatives. For example, section 16 of the CN Commercialization Act declared that the railway and transportation works of CN are works for the general advantage of Canada.

Deem any VIA HFR-VIA TGF Inc. (Alto) Railway Line to Have Received a Section 98 Approval

This measure ensures that any railway line built for the initiative, whether planned or under construction by Alto or its private sector partners, will not need approval from the Canadian Transportation Agency (Agency) under section 98 of the Canada Transportation Act (CTA).

Under current rules, a railway company cannot build a railway line without approval by the Agency under section 98 of the CTA. This change will streamline the process by removing the need for this step, as long as the railway line is part of the initiative.

The Agency typically balances the needs of railway operations with the interests of affected localities. However, this requirement is being removed because those considerations will be addressed through other processes, such as Cabinet decisions and reviews under the IAA.

This measure brings two key benefits:

  • It simplifies and speeds up the regulatory process without sacrificing public interest as the IAA covers many of the same considerations.
  • It prevents potential conflicts between the Agency’s review and Cabinet’s decisions on the location of the railway line.

The IAA focuses on public interest, while the Agency review considers community-level impacts. In similar past cases, these considerations have aligned, meaning additional Agency conditions were not required.

The Agency will maintain oversight on specific rail issues, like noise, vibration and road crossings, after the railway is built.

As the railway alignment, as foundational to the business case, will be approved through Cabinet, this measure avoids situations where the Agency might challenge or contradict decisions made by Cabinet. If the Agency’s approval process were required and Governor in Council disagreed with the outcome, the Governor in Council would ultimately have the authority to vary or rescind the Agency’s decision. This change prevents duplication and streamlines the decision-making process.

Protection of Indigenous Knowledge when provided in Confidence

This measure provides a mechanism for protecting Indigenous knowledge that is provided in confidence, when it is shared with Alto, Transport Canada (TC) or Public Services and Procurement Canada (PSPC) in relation to this initiative. Canada has committed to considering Indigenous knowledge (e.g., sacred site locations) in the initiative and will therefore need to be able to protect its confidentiality and respect Indigenous laws and protocols for its use.

TC, PSPC and Alto are subject to Access to Information and Privacy (ATIP) legislation and trying to protect confidential Indigenous knowledge through this legislation can be challenging as TC, PSPC and Alto would have to rely on existing provisions in the ATIP legislation to try to protect confidential knowledge on a case-by-case basis. This approach does not offer sufficient assurance to Indigenous communities that would likely be needed for them to feel comfortable sharing confidential information. Disclosing knowledge provided in confidence could harm Canada’s relationship with Indigenous Peoples and would not be aligned with Canada’s commitments to advance reconciliation through the initiative.

The consideration of any Indigenous knowledge provided is mandatory during certain regulatory processes, including to inform decisions made under the IAA and the Canadian Navigable Waters Act (CNWA). However, the protections for Indigenous knowledge provided in these acts only applies to the decision makers (i.e., IAAC and TC) in relation to their respective decisions (i.e., under the IAA or CNWA). Given the broad nature of the HSR initiative, the proposed legislative measure would allow Indigenous knowledge shared in confidence with TC, PSPC or Alto to be considered and protected throughout the lifecycle of the initiative.

If this measure was not implemented, there is a risk that:

  • Indigenous knowledge holders may be reluctant to share Indigenous knowledge, which would limit available information to inform good planning decisions and could delay project timelines.
  • If confidential knowledge is shared and subsequently released without authorization, Indigenous sites (such as sacred sites) could be damaged, or resources (such as medicinal plants) lost.
  • Canada is working to build nation-to-nation relationships that are built on trust with Indigenous peoples, and not having the ability to respect Indigenous laws and protocols for the use of Indigenous knowledge would be likely to have a negative effect on TC and Alto’s efforts to build positive relationships with Indigenous peoples through this initiative.

Building strong, positive, long-term relationships with Indigenous communities and organizations is critical to the success of this initiative. This measure will provide communities with greater confidence that Indigenous knowledge provided in confidence in the context of this initiative will respect protocols for its use and remain confidential.

Official Languages Act Application

This legislative measure ensures that the Official Languages Act (OLA) applies to any entity
(e.g. the private partner or its assign or successor) with which Alto enters into a contract respecting the operations or maintenance of the HSR network. It also ensures that Parts IV to VI and VIII to X of the OLA apply to any entity that:

  1. Operates passenger rail services between Quebec City and Windsor (Local Services) that were, on the day on which section 1 of the High-Speed Rail Network Act comes into force, operated by VIA Rail Canada Inc. (VIA Rail);
  2. Operates a railway that is part of the HSR network (High-Speed Railway).

This measure will align with the public-private partnership model while ensuring these entities, including those operating the Local Services and a High-Speed Railway, will be responsible for maintaining accountability for the protection of official languages in accordance with their obligations under the OLA, during the operation and maintenance of the initiative.

As such, Canadians will continue to receive bilingual services and communications in the operation of the initiative for the Local Services and the High-Speed Railway. This measure will also eliminate any gaps in official language obligations of these entities to their employees, including the transferred VIA Rail employees.

It is noteworthy that precedents exist with the privatization of Crown corporations such as Air Canada and with the transfer of airport administration to local airport authorities. The Air Canada Public Participation Act, provided that the OLA continued to apply to Air Canada, following its privatization. Similarly, where the Minister of Transport has leased airports to local airport authorities, the Airport Transfer (Miscellaneous Matters) Act provides that various Parts of the OLA apply to the local airport authorities as if they were federal institutions. This measure follows a similar approach to these precedents and will fulfill the need for robust protection of official language rights in this large scale, federally supported infrastructure initiative.

Provide the Minister of Public Works and Government Services with the Authority to Establish Prohibition on Work for the Purposes of the Initiative

Registering a Notice of Prohibition on Work (“Prohibition”) on properties that could potentially be acquired for the initiative would prohibit the undertaking of any work to that property, other than work to prevent the normal deterioration or to maintain normal functional state, to help prevent land speculation and ensure potential acquisition costs are not driven up significantly prior to acquisition, including by expropriation.

The process to register a Prohibition would be initiated by a request from Alto to the Minister of Transport, who would then assess if the lands subject to the request may be required for the Initiative and whether they should be subject to such Prohibition. If the Minister of Transport agrees, they would then ask the Minister of Public Works and Government Services to register the Prohibition. This process is modeled after the concept of a Notice of Intention to Expropriate under the Expropriation Act, ensuring a clear and cohesive approach.

A Prohibition could be established on key strategic areas early in the planning process. It is intended to be a temporary measure, typically lasting no longer than four years. If a Prohibition is deleted, this would entitle affected persons to compensation, in a manner similar to what is done in cases of abandonment of a Notice of Intention to Expropriate. By establishing a Prohibition, land acquisition costs can be better managed, and design and construction planning of the initiative can be facilitated.

Additionally, the proposal ensures that if a change of ownership occurs, the restrictions stemming from the Prohibition would bind the new owner.

Property

This legislative proposal would allow VIA HFR – VIA TGF Inc. (Alto), an agent Crown corporation under the Financial Administration Act (FAA), to sell, lease, or otherwise dispose of property it holds in its name, so it can benefit from the exception under ss. 99(3) of the FAA.

As Alto was incorporated under the Canada Business Corporations Act, Alto was not specifically empowered by legislation to sell, lease or otherwise dispose of property it holds. As such, this proposal would allow Alto to take advantage of the exception under ss. 99(3) of the FAA, so that it would not have to obtain authorization from the Governor in Council first before proceeding with a sale, lease or disposal of its property, as is otherwise required under
s. 99(2) of the FAA.

Given the high number of real property transactions required for the initiative, a requirement to obtain Governor in Council authorization before proceeding with such a transaction would be inefficient and burdensome. For example, the initiative will likely require relocating hundreds of public utility services which would require extinguishing the existing easement and creating a new easement right for the utility provider. Without this proposed legislative measure, the Governor in Council would need to authorize each transaction in accordance with ss. 99(2) of the FAA. This would be less efficient and would have increased costs than this proposal, which would streamline these transactions, allowing Alto to manage property more effectively and efficiently. Other agent corporations, including Canada Post, the Canada Mortgage and Housing Corporation, and the Bank of Canada, have express legislative authority to sell, dispose or lease their property.

Right of First Refusal

This legislative measure would make it possible for VIA HFR – VIA TGF Inc. (Alto) to subject certain lands that it considers may be required for the Initiative to a right of first refusal. Effected through the registration of a notice on a given land, the right of first refusal would give the opportunity to Alto to match an offer to purchase the land, if and when an owner who was otherwise looking to sell these lands accepts an offer from a third party to purchase them.

Alto would need to purchase the land at the same price provided in the offer from a third-party purchaser. This should assist Alto in securing lands for the initiative in a fair and transparent manner by purchasing lands at a price and at a time that were acceptable to the landowner in a willing buyer/willing seller context.

Alto would register the notice at the land registry office in which the land is situated and send a copy to the landowner. The right of first refusal could remain in force for up to eight years.

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