1. The context for fisheries regulations
Stefan Leslie
February 2019

2. The Marine Environmental Observation, Prediction and Response Network
Strengthening Canada’s capacity to anticipate and respond to marine risk in a changing environment
64 research projects
123 researchers
475 highly-qualified personnel
27 universities across Canada

3. What we mean by ‘regulation’
“Traditionally regulations have predominantly been
the preserve of the state where governments use
their legislative authority to prescribe acceptable
behavior and consequences for failure to comply.”
How the state chooses to deploy its exclusive right to lawfully coerce.
What things cannot be done (and their penalty)
What things must be done (and their reward)
I also include how the incentive structure can be constructed to promote public interests.

4. Fisheries Theory Common Pool Resources (unmanaged) Overcapitalisation
Rent dissipation
Overexploitation

5. Addressing Common Property
Common Pool Resources
Change the nature of the commons
Regulate the commons

6. Addressing Common Property
Common Pool Resources
Regulate the commons
Output control (TAC)
seasons
fish size
fishing areas
Limited-entry licencing
at-sea observers
Escapement targets (eg. Salmon)
dockside monitoring
Vessel and gear restrictions
trip limits
sex selectivity
Recruitment strategies (eg. Lobster)
catch monitoring

7. Addressing Common Property
Common Pool Resources
Change the nature of the commons
A range of market-like, property-like or rights-based systems are possible
Enterprise Allocation
Individual Vessel Quota
ITQs
IQs
Community Allocation
Territorial User Rights
Individual Effort Control
Industry-association managed quota

8. Addressing Common Property
Common Pool Resources
Change the nature of the commons
Regulate the commons

9. Addressing Common Property
Legislation
Regulations
Policy
Operations and Implementation

10. Transparency and Consistency
Strickland: ‘Laws are considered unconstitutional for one reason or another, not policies … it is not the role of the courts to determine the constitutionality of policies’
Comeau: Discretion restricted ‘only by the requirements of natural justice … Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith.’
Ward: The ‘purpose [of legislation] refers to what the legislature wanted to accomplish.’
discretion, which remains unassailed.  In Comeau, this was defined as being restricted “only by the requirement of natural justice … Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith”.
Elson demonstrates, the decision-maker need not follow policy; need not provide detail on decision-making factors in explaining the decision; the court isn’t concerned about the efficacy of the measure just its intent; nor will the court put itself in the decision-makers shoes restricted “only by the requirement of natural justice … Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith”.
Ward: The “purpose [of legislation] refers to what the legislature wanted to accomplish”.  Where the purpose of the Fisheries Act is repealed (which it was), how can economic and social considerations be understood?  How can they be taken as anything but what the Minister decides, at that time, perhaps expressed by policy, but not necessarily because policy cannot fetter the discretion?

11. Approaches
Velocity, separation, alignment, cohesion
‘The proposed changes would align DFO regulations with the current practice in Newfoundland and Labrador and Quebec, where regional policy has recognized certification boards as the responsible organization for registering fishers since the late 1990s.’

12. Things Change Climate and uncertainty Arctic summer minimum ice extent
(Source: Overland & Wang, 2013)
CO2 or emissions are drivers; this is a result: sea ice. Could also have shown heat uptake; acidification, others.
“Stocks may become more sensitive to the effects of fishing when climate conditions are adverse and more sensitive to climate when fishing causes changes in population processes (growth, condition, maturity, fecundity, realised reproductive output and natural mortality) and in demographic properties (age structure, geographic sub-structure).” (ICES, 2006)

13. Elements of Good Reg Approach
Purpose; start dates; decisions before fishery opening; consultation requirements
For example:
Decision-making: Ministerial decisions on fisheries in Canada Gazette.
Transparency: Proactive disclosure including submissions to decision-making; advice to Minister; rationale for decision.

14. Regulatory Environment
DFO dictates who can fish, for what species, where and when and how much, what boats and equipment can be used, who must be on the boat, what can and can’t be done to fish before its landed, and where it must go.
Very difficult to innovate, or adapt to changes.
Are harvesters optimizing their business to react to shocks and changes, or to best fit those rules? Where does entrepreneurial energy get spent?

15. Regulatory Environment
Can incentives be aligned with the public good?
Is it possible to internalize the consequences of behaviour (to an individual, or a group)?
What discretion and autonomy can be provided when incentives are internalized?
What happens when incentives change? Can the system adapt?

16. Incentives on the Regulator
When there is low tolerance for failure (even if highly unlikely and infrequent), there is little incentive on the regulator to take risks.
Or innovate.

17. Pace of Change
Regulations imposed for one problem may shift over time to address a (previously) unrelated issue.
Investments are made based on stability of regulations.
Removing outdated or obsolete regulations is just as difficult and takes as long as introducing a new one.

18. Culture
Regulatory culture matters.

19. Thank you