Not So Smart Regulation

1
Not So Smart Regulation?

• An overview report on AquaNet SE 9
• Dr Jeremy Rayner (Malaspina University-College)
• Dr. Michael Howlett (Simon Fraser University)

2
What did we set out to achieve?

• An overview of the regulatory framework for
  shellfish aquaculture
• Characterize the policy style
• See what steps have been taken to move away from
  traditional policy instruments to more innovative
  approaches
• Focus on particular cases in which we can see
  the effect of the policy style in context

3
Whats the context of our study?

• International regulatory context
• Network governance
• Smart regulation
• Canadian context
• DFO Aquaculture Framework
• Federal legacies and initiatives
• Local context
• Tenure Expansion and 50 in 5"
• Provincial policies and initiatives in BC

4
How did we proceed?

• The Regulatory Review
• Case Studies (reported)
• First Nations Dr. Chris Tollefson with Alyne
  Mochan
• Gulf Islands Dr. Rick Rollins with Dave
  McCallum
• The New Zealand Experience Dr Peter Clancy with
  Krista MacEachern

5
What did we find?

• Though most provinces are committed to industry
  expansion, vertical integration of policies
  remains a serious problem
• The policy style is dominated by the legacy of
  the old regulation and subsidies approach
• New policy mixes are being created by overlaying
  new instruments on older ones, creating complex
  rather than smart regulation

6
Where are we going?

• Other Case Studies (ongoing or not reported)
• The European Experience Dr. Jeremy Rayner
• Baynes Sound Management Plan Dr. Chris
  Tollefson
• Atlantic Provinces Dr. Peter Clancy
• New research
• Integrating Shellfish Aquaculture and Marine
  Protected Areas Rollins, Tollefson, Rayner
• Federalism and Aquaculture Rayner and Howlett
• CURA on communities and shellfish
• New directions?

7
What can we hope to achieve?

• If its already broken, we cant fix it
• We can step back and try to anticipate future
  problems
• Advise putting the policies in place that will
  mitigate or even head off the problems before
  they become chronic irritants

8
Network governance

• Key link is between Network Structure and
  Propensity for Change
• Change Drivers Are New Ideas and New Actors

9
Networks and Regulation
10
Policy Instruments

• Policy Instruments are Basic Tools of Governance
• Tools Use Different Governing Resources
• The NATO scheme
• Nodality
• Authority
• Treasure
• Organization

11
Tools and Resources
12
Substantive Policy Instruments

• Policy Instruments Used to Deliver Goods and
  Services
• Examples of Substantive Policy Tools Listed Below
  (by level of state involvement in production
  activities)

13
Procedural Policy Instruments

• Policy Instruments Used to Alter and Legitimate
  Policy Processes
• Examples of Procedural Policy Tools Listed Below
  (by level of state involvement in network
  activities)

14
Smart regulation

• A context-sensitive MIX of instruments
• Draw the mix from the full range of available
  instruments
• Be sensitive to the continuing pressure on
  governments to do more with less
• Continue the search for new instruments

15
Smart regulation mixing instruments

• Context dependent
• Agriculture or fishery?
• Structure of the industry?
• Positive interactions
• A code of conduct should improve performance
• Improved performance should trigger regulatory
  relief

16
Smart regulation consider all the options

• Regulation isnt just a choice between government
  and markets
• Dont let ideology decide

17
Smart regulation doing more with less

• Self regulation and co-regulation
• Incentive-based instruments
• Regulatory surrogates
• Suppliers
• Customers
• Auditors and certifiers

18
Smart regulation the search continues

• Procedural instruments
• Information instruments
• make it so the next generation?
• Environmental Improvement Plans (EIP)
• Negotiated and implemented with community
  participation
• Companies devise their own EIPs
• Those who fail to do so can be forced to do so by
  regulators acting under statutory authority

19
Federal Policy Framework the constitutional
tangle

• Aquaculture is not mentioned by name and no legal
  definition has been provided
• Aspects of aquaculture come under a variety of
  the enumerated heads of ss. 91 and 92
• The unfinished business of aboriginal title and
  rights
• Jurisdiction is sometimes held by one level of
  government and sometimes overlapping or ambiguous
• Aquaculture is not presently recognized as an
  area of concurrent jurisdiction like agriculture
  or immigration

20
The reality of federal policy policy legacies
(1)

• The federal Fisheries Act and Navigable Waters
  Protection Act
• Traditional regulatory instruments close to the
  command and control model
• In practice, they involve extensive discretion
  creating uneven application and the perception of
  unfairness

21
The reality of federal policy policy legacies
(2)

• The Canadian Shellfish Sanitation Program (CSSP)
• An early example of horizontal coordination
• Expensive
• Focuses on a narrow range of hazardous conditions
• Blunt instrument for improving access to clean
  water

22
Federal policy new instruments

• The Canadian Environmental Assessment Act (CEAA)
• More complex, hybrid instrument
• Attempts to embody risk management and the
  precautionary principle
• Has become a cumbersome and hated planning tool
  for dealing with hazards to navigation
• In the process, undermines the legitimacy of EIA
  as a policy tool in the eyes of the industry

23
Federal policy new instruments (2)

• Species at Risk Act (SARA)
• Would use EA to address issues of harm to habitat
• Oceans Act
• Committed to DFOs version of the precautionary
  principle
• Canadas Oceans Strategy
• Aquaculture Policy Framework
• Introduces concept of ecosystem-based
  management
• Both unknown quantities with potentially huge
  consequences for shellfish aquaculture
• How do they fit with the older instruments?

24
Federal policy subsidy

• Aquaculture as an engine of regional development
• ACOA, WED and the politics of regional
  development
• The EU model social cohesion funding
• Do we know whether aquaculture does the job?
• The reappearance of the agriculture model
• Farm credits
• OCAD and the level playing field

25
BC policy legacies

• BC Fisheries Act
• Aquaculture Reg. 364/89 licensing
• Reg. 140/76 shellfish culture and harvesting
• Waste Management Act
• Local Government Act, Islands Trust Act
• Local authority planning powers
• Whats missing ..?

26
BC new instruments

• Farm Practices Protection (Right to Farm) Act
• The agricultural model again
• Code of Practice
• Regulation, co-regulation, self-regulation?
• We dont know and this affects our evaluation of
  the content
• Land Use Planning
• Planning fatigue?

27
Existing network management tools

• Jurisdiction addressed by intergovernmental
  agreement
• MOUs
• Policy formulation coordinated by
  intergovernmental negotiation
• CCFAM and the Aquaculture Task Group
• Implementation coordinated by service agreements
  and ad hoc committees
• BC Agreement on Compliance and Enforcement
• The Directors of Aquaculture Committee

28
Network governance taking stock

• To date most activities have focused exclusively
  on governments not governance
• Locally, a small group of agencies consider
  themselves to be the policy network they
  consultas they think necessary
• Their objective has been to expand the industry,
  hence the legitimation problems with non-producer
  interests
• Not even the industry is very happy about this

29
Network governance where we need to be

• Need more attention to network issues both for
  legitimation and production purposes
• Need to help the industry organize
• Need to make the policy network more inclusive
  without inducing planning fatigue

30
Smart regulation where we need to be (1)

• Smart regulation calls for the integration of
  effective community participation in planning and
  implementation activities
• EIP instead of COP
• COP is a codification of existing normal
  practices with vague good neighbour provisions
• EIP is a mechanism for continuous improvement

31
How would EIP work?

• Have to be organized at industry rather than
  company level
• Goals would be drawn from ecosystem management
  literature such as desired future state
• Audit of industry activities that affect the
  goals
• Environmental management guidelines

32
Next generation EIP

• Introduce a simple self audit system for applying
  the guidelines
• Build on the guidelines towards a recognized EMS,
  such as ISO 14001, with voluntary industry
  involvement
• Maintain community participation
• Offer significant regulatory relief for those who
  adopt the EMS, subject to external accreditation

33
Smart regulation where we need to be (2)

• Smart regulation calls for the development of
  mechanisms which integrate local concerns with
  larger ones significant beyond the locality
• The internationalization of domestic policy

34
Smart responses to internationalization

• BC industry is potentially vulnerable to NGO
  campaigns in export markets
• 80 of BC product exported
• Conforming to NSSP is a minimal requirement that
  addresses regulator not consumer confidence
• Quality assurance and certification
• Will almost certainly involve an accommodation of
  First Nations interests
• Other industries built on their prior experiences
  with ISO or CSA standards

35
Recommendations

• Canadian governments should give more thought to
  the use of smarter, next generation substantive
  instruments
• streamlining regulation, self-regulation,
  auditing, certification and management
  accountability.
• Avoid moving down the subsidy path unless linked
  to larger goals, such as enabling network
  governance and improving stakeholder organization
  and capacity

36
Recommendations (2)

• Canadian governments devote much more attention
  to the use of procedural instruments beyond
  authoritative ones (industry advisory
  committees).
• These should include activities using other
  resources such as financial support for interest
  groups (community, industry, first nation,
  environmental NGOs)
• the use of information resources to promote
  scientific and stakeholder networking,
• the use of organizational resources such as
  (legislative as well as administrative)
  commissions and inquiries to promote knowledge
  transfer and networking
• consultative mechanisms and strategies need to
  show real payoff for participants and include
  arrangements for continuing involvement

37
Recommendations (3)

• Canadian governments should specifically address
  the issue of instrument mixes and attempt to
  consciously design an optimal governance
  strategy
• specifically by drawing on lessons from other
  jurisdictions such as US states, EU member
  nations, Australia and New Zealand with
  experience in aquaculture and coastal zone
  planning.

38
Recommendations (4)

• Canadian governments should examine their
  commitment to network governance carefully.
• The prevailing managerialism is incompatible with
  the governance model
• Implementation will require serious reexamination
  of the institutional culture of key federal and
  provincial agencies.

39
Concluding unscientific postscript

• The construction of an effective regulatory
  program must be based on a recognition of
  political forces. To rephrase Clausewitzs
  aphorism on war the regulatory process is the
  continuation of political struggle by other
  means