‘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. 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 did we set out to achieve?

3. 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 What’s the context of our study?

4. 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 How did we proceed?

5. 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 What did we find?

6. 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? Where are we going?

7. 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 What can we hope to achieve?

8. Key link is between Network Structure and Propensity for Change Change Drivers Are New Ideas and New Actors Network governance

9. Networks and Regulation

10. Policy Instruments are Basic Tools of Governance Tools Use Different Governing Resources The “NATO” scheme Nodality Authority Treasure Organization Policy Instruments

11. Tools and Resources

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

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

14. 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

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 isn’t just a choice between government and markets • Don’t let ideology decide

17. Self regulation and co-regulation Incentive-based instruments Regulatory surrogates Suppliers Customers Auditors and certifiers Smart regulation: doing more with less

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 EIP’s • Those who fail to do so can be forced to do so by regulators acting under statutory authority

19. 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 Federal Policy Framework: the constitutional tangle

20. 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 (1)

21. 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 The reality of federal policy: policy legacies (2)

22. 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

23. 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: new instruments (2)

24. 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” Federal policy: subsidy

25. 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 policy legacies

26. 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? BC new instruments

27. 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 Existing network management tools

28. 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: taking stock

29. 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 Network governance: where we need to be

30. 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 Smart regulation: where we need to be (1)

31. 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 How would EIP work?

32. 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 Next generation EIP

33. 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 regulation: where we need to be (2)

34. 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 Smart responses to internationalization

35. 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

36. 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 (2)

37. 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 (3)

38. 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. Recommendations (4)

39. 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’”