This article is based on a talk held at Carleton University that is part of a series of nine delving into the theme of “What should be on Canada’s policy radar?” The panel discussions are being held throughout 2022 to mark the 50th anniversary celebrations of the Institute for Research on Public Policy, publisher of Policy Options magazine. The Carleton discussion focused on emerging shifts in regulatory governance. Panelists included: Darcy Gray, chief of Listuguj First Nation and an instructor at Cape Breton University; school fellow Catherine MacQuarrie, associate professor Alexandra Mallett, and adjunct professor Kevin Stringer from Carleton’s school of public policy and administration: The moderator was associate professor Robert Shepherd, who co-authored this article. A video recording of the panel discussion is also available.
The last few years of crisis have inextricably changed the way that regulation is conceived and implemented. Wildfires in Canada’s West, the Ottawa and border convoy occupations, as well as the COVID-19 pandemic are just some of the events that have forced governments to retool their processes for making and implementing regulations in response to crises. These recent events, and others like them, meant governments had to be both expedient and effective, which held the probability of low regulatory efficacy. Regulators had to act fast, take less time researching, testing and adjusting – and sometimes literally put out fires.
With the shake-up of the pandemic easing off – reducing some of these pressures – municipal, provincial, federal and Indigenous governments in Canada need to ask themselves fundamental questions: what tools and practices developed in these years can be maintained and improved to create effective and ethical regulations for the future? Which ones can be abandoned or replaced altogether?
It is an important process demanding that policy-makers question the basic assumptions behind creating, designing and implementing regulation. As a starting point, governments must reconsider basic principles for crafting sound guidance on regulatory design criteria.
It is time to return to a more principled approach to regulation that better responds to political, economic, environmental and social change while recognizing regulation’s holistic impact as a policy tool, the panel of Carleton University researchers and associates concluded in a discussion in March. In particular, regulatory design principles must be considered when policy-makers review the last few years of work, panelists said.
The principles of policy
So, what do the principles of policy mean? Arguing that regulators need to take a more “principled” approach might seem like asking an artist to use more concrete shapes, or a writer to tighten up their sentences. In other words – the ask is up for interpretation.
But there are basic measures of success that policy-makers can generally apply.
In 2017, the Organization for Economic Co-operation and Development (OECD), the international policy standard-setter, released a report on current and future trends in regulatory governance. It outlines seven principles for governments to consider when crafting and implementing regulation. Chief among them are the essential hallmarks of good policy: performance evaluation, engagement, accountability and transparency.
Beyond these basics, regulators can create context-specific principles. For example, Canada’s cabinet directive on regulation includes regulatory principles on diversity and the duty to consult with Indigenous communities on the potential effects of regulation on their affairs, Carleton adjunct professor Kevin Springer argues.
The last few years have also placed the application of principles under immense pressure. The pandemic has demanded governments design regulation quickly, release it to a highly engaged public, and do it all remotely from their computers. A principles-based approach is needed now, more than ever, as the clarity of top-down guidance becomes weaker, Springer maintains,.
Additionally, regulation is a powerful tool, but governments have not always excelled at thinking holistically about regulatory effects and finding innovative ways to evaluate regulatory effects that recognize the consequences of incorporating related regulations or systems, explained panellist Alexandra Mallett.
Mallett argued that regulations can sometimes fail to uphold the principle of policy coherency: the idea that regulation has to clearly address the problems it aims to fix.
We can find instances of policy lacking in coherence: for example, Canada’s COVID-19 border restrictions, such as its mandating the use of the ArriveCAN app, sought to address rising COVID-19 infection rates but also created backlogs and challenges related to travel, tourism, human rights protection and privacy. The government’s travel regulations did not effectively pinpoint and tackle the problem of virus spread.
Principle for a better (or worse) Canada
If governments continue to prioritize speed and expediency over the principles of regulation such as targeting and transparency, Canadians will continue to feel the effects, and marginalized communities will continue to suffer most of all.
It is well known that the pandemic has disproportionately affected racialized people. The same can be said of disabled people, people in long-term care facilities and 2SLGBTQIA+ people, among other groups, who were not included in discussions about the very regulations designed purportedly to secure their safety.
Regulatory principles can help provide grounding and can demand that human rights trump the need for expediency. Organizations such as the Ontario Human Rights Commission have highlighted the need for human rights-based principles to mitigate the effects of the pandemic on marginalized communities.
Principles can also help prevent Canadian governments from ignoring the country’s colonial reality. Without taking a principles-based approach to regulation that demands policy-makers consider Indigenous land, cultural and governance rights under Section 35 of the Constitution Act, Canadian governments can threaten Indigenous sovereignty and the well-being of Indigenous communities.
Canadian regulations have often come into conflict with Indigenous Peoples’ sovereignty, say Listuguj Mi’gmaq First Nation chief Darcy Gray and Carleton fellow Catherine MacQuarrie. Both Gray and MacQuarrie work with Carleton’s Rebuilding First Nations Governance Project, which provides research support to First Nations creating their own laws and regulations.
Listuguj recently signed an agreement with the Department of Fisheries and Oceans in which the department recognized the community’s lobster fishing law, but Listuguj spent decades dealing with Canadian fishing regulations that threatened its right to manage its own fisheries – a right protected by Canada’s Constitution and case law. Being open to negotiate regulations is a critical step toward acceptance, but more importantly to regulatory outcomes that matter to the community.
Despite the agreement, Listuguj and other Indigenous Nations still must navigate a web of Canadian regulations preventing them from utilizing their own land, waters and governance systems. Adopting principles that prioritize Indigenous rights can help policy-makers review current policy to weed out rights infringement and build a better regulatory landscape for Indigenous nations.
Putting our principles in action
To review the past and to forge a better future, Canada must ultimately focus its attention on coming to an agreement on regulatory principles that set the conditions for progressive design and process. A principled approach to regulating provides governments a means to weigh and estimate the effects of regulation before, during and after implementation. A consideration of traditional principles such as efficiency and effectiveness – with the added emphasis on design principles such as openness, transparency and consultation – helps ensure these regulations meet desired outcomes.
The pandemic and other crises of the last few years have changed the way governments approach regulation, but one thing is certain: the way forward for effective regulation is to focus on the soft skills of collaboration rather than on speed or political expediency. Taking a principled approach is one way to move forward that builds relationships and ensures coherence across various policy domains and jurisdictions, including Indigenous organizations and communities.
This article is part of What Should Be on Canada’s Policy Radar? special feature series.