‘Not So’ Smart Regulation? An overview report on AquaNet SE 9 Dr Jeremy Rayner (Malaspina...
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Transcript of ‘Not So’ Smart Regulation? An overview report on AquaNet SE 9 Dr Jeremy Rayner (Malaspina...
‘Not So’ Smart Regulation?
An overview report on AquaNet SE 9
Dr Jeremy Rayner (Malaspina University-College)
Dr. Michael Howlett (Simon Fraser University)
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
What’s 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
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
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
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?
What can we hope to achieve?
• If it’s already broken, we can’t 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
Network governance
• Key link is between Network Structure and Propensity for Change
• Change Drivers Are New Ideas and New Actors
Figure I – Basic Policy Subsystem Configurations
Receptive to New Ideas
Receptive to New Actors
No Yes
No Closed Subsystem
Resistant Subsystem
Yes Contested Subsystem
Open Subsystem
Networks and Regulation
Private Capacity
Government capacity
Low High
Low Interfering
Interventionist
HIgh Private Self-regulation
Regulated Self-Regulation
Policy Instruments
• Policy Instruments are Basic Tools of Governance
• Tools Use Different Governing Resources• The “NATO” scheme
– Nodality– Authority– Treasure– Organization
Tools and Resources
Nodality Authority Treasure Organization
Information Monitoring and Release
Command and Control Regulation
Grants and Loans
Direct Provision of Goods and Services and Public Enterprises
Advice and Exhortation
Self-Regulation User Charges Use of Family, Community and Voluntary Organisations
Advertizing Standard Setting and Delegated Regulation
Taxes and Tax Expenditures
Market Creation
Commissions and Inquiries
Advisory Committees and Consultations
Interest Group Creation and Funding
Government
Reorganization
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)
Family & community
Voluntary organis-ations
Private market
Inform-ation & exhortat-ion
Subsidy
Tax & user charges
Regulation Public enterp-rise
Direct provision
voluntary Mixed compulsory
Low High
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)N
etw
ork
Sel
f-C
reat
ion
And
Ope
rati
on
Info
rmat
ion
Man
agem
ent
And
Dis
trib
utio
n
Res
earc
h an
d I
nter
est
Gro
up F
undi
ng
Sta
ndin
g/A
cces
s an
d A
dvis
ory
Com
mit
tee
Cre
atio
n
Inst
itut
iona
l Ref
orm
and
G
over
nmen
t R
e-or
gani
zati
on
Management Mixed Restructuring
Low High
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
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
Smart regulation: consider all the options
• Regulation isn’t just a choice between government and markets
• Don’t let ideology decide
Smart regulation: doing more with less
• Self regulation and co-regulation• Incentive-based instruments• Regulatory surrogates
– Suppliers– Customers– Auditors and certifiers
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 EIP’s
– Those who fail to do so can be forced to do so by regulators acting under statutory authority
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
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
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
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
Federal policy: new instruments (2)
• Species at Risk Act (SARA)
– Would use EA to address issues of harm to habitat
• Oceans Act
– Committed to DFO’s version of the precautionary principle
• Canada’s 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?
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”
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
• What’s missing …..?
BC new instruments
• Farm Practices Protection (Right to Farm) Act– The agricultural model again
• Code of Practice– Regulation, co-regulation, self-regulation?
– We don’t know and this affects our evaluation of the content
• Land Use Planning– Planning fatigue?
Existing network management tools
• Jurisdiction addressed by intergovernmental agreement– MOU’s
• 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
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 “consult”as 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
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
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
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
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
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
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
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
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
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.
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.
Concluding unscientific postscript
“The construction of an effective regulatory program must be based on a recognition of political forces. To rephrase Clausewitz’s aphorism on war ‘the regulatory process is the continuation of political struggle by other means’”