ENVIRONMENTAL PROTECTION UNDER THE FISHERIES ACT AND BILL C-68: PROGRESS OR REGRESS?

• Author: Johnson, James
• Position: Proposed Canada Fisheries Amendment Act 2018

Introduction

As Canadian politicians, academic commentators, and citizens generally look to the monumental challenge of addressing the rapid and frightening degradation of the natural environment, careful attention should be directed to current developments in the United States. The Trump Administration is rolling back a host of progressive environmental initiatives. (1) Given the size of the American economy, these regressive measures could have a serious, even catastrophic, impact on the world at large. But the moves of the Trump Administration also offer an important lesson on a general dysfunction in modern democratic governance that is strongly evident in Canadian legislation, and particularly in Canadian environmental legislation.

Current regressive measures in the United States are proceeding through executive order, even as many of the progressive initiatives of the prior Obama administration proceeded through executive order. (2) Such orders flow from what is arguably the dominant practice of modern legislatures: broad and often normless grants of law and policy-making power to executive decision-makers. Legislation itself all too often contains no clear policy choices, and in such circumstances, where legislatures have virtually written themselves out of the policy-making process, it becomes very easy for successive regimes to pursue drastically different agendas.

The Trump Administration was not elected with a strong mandate to dismantle environmental controls, any more than the Obama Administration was elected with a strong mandate to enact environmental controls. These same observations apply to Canada. The government of Stephen Harper was not elected with a strong environmental de-regulation mandate any more than the current government of Justin Trudeau was elected with a strong environmental protection mandate. Modern elections are rarely fought on a single issue. Personality figures as broadly as any package of policies, let alone any individual policy initiative. Legislatures, not general elections and resulting executive regulations, rules, and orders must remain the crucial site of policy making, for only legislatures can adequately focus public decision-making on a particular issue. Executive action under the authority of vaguely worded and capacious enabling clauses is the sign of an impoverished democracy. Formulating concerted responses to the crisis of environmental degradation must proceed with the legitimacy that can be forged only through broad public discussion culminating in detailed legislative initiatives.

In this paper, I consider the maximal room provided for executive lawmaking in two crucial environmental provisions of the Canadian Fisheries Act? The Fisheries Act was substantially amended in 2012 under the Harper Government ("Harper Amendments"), (4) and is the subject of proposed amendments by the Trudeau government ("Bill C-68"). (5) While the new amendments are allegedly intended to address regressive changes enacted in 2012, (6) in crucial respects the legislation will remain unchanged, even as it was essentially unchanged by the 2012 Harper Amendments themselves. The dominant strategy of governance under the Fisheries Act for many decades has been broad delegations of policy-making power to the executive. I argue that this delegated power is not adequately cabined by legislated norms, obscuring environmental decision-making behind layers of complex and interlocking enabling provisions that ultimately leave the executive with ample room to pursue any policy it desires. I submit that this legislative strategy leaves the success of any commitments to meet environmental goals highly uncertain. Even if the present Trudeau government pursues an aggressive environmental agenda (and there is admittedly little evidence of such a direction so far), future governments can change course as easily as the Trump Administration has gutted the protections set in place by the Obama administration.

My analysis proceeds as follows. In Section A, I argue that democratic government must proceed through legislated policy choices. In Section B, I consider sections 35 and 36 of the Fisheries Act, noting basic environmental prohibitions, but noting also the enormous qualifications in place that can undermine these prohibitions, qualifications that transfer broad policy-making power to the executive. In Section C, I consider a disturbing legislative strategy of obfuscation and avoidance introduced by the Harper Amendments of 2012 and continued in the proposed Bill C-68. Under this strategy, naked enabling provisions appear to be populated with normative content through complex and interlocking external sections of the legislation mandating a consideration of relevant "factors." Close examination of these new sections reveals little in the way of meaningful policy guidance. In Bill C-68, this strategy of obfuscation and avoidance potentially nullifies one of the few important advances made by the proposed amendments.

1. The Democratic Character of Conflict Resolution in Legislatures

   Government through executive order, enabled by broad and normless legislation, reveals a fundamental breakdown of democracy. It should not be possible for successive regimes to pursue dramatically different policy agendas through the same piece of legislation. Legislative bodies must be the core of a system of meaningful self-government. This conclusion is supported by the Supreme Court of Canada's leading modern discussion of the democratic principle in Reference re Secession of Quebec:

   a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas" (Saumur v City of Quebec). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live. (7) This passage, which is consistent with other high-profile Supreme Court judgments, (8) equates democracy with institutionalized processes of public discussion and debate on divisive issues, and further provides that political conflict is the normal state of affairs in a democratic society composed of free individuals. In such a society, "[n]o one has a monopoly on truth," and there is a bustling "marketplace of ideas." Through a "continuous process of discussion," participants "build majorities" through "compromise, negotiation, and deliberation." Conflicts and disagreements are resolved, but only temporarily, as there always remain "dissenting voices."

   In a "functioning democracy," it must be the case that citizens have the right to engage in the process of conflict resolution--to be part of the majority on a given question of law or policy, or, alternately, to be a "dissenting voice." (9) This right, central to the democratic principle, has strong institutional corollaries. The Supreme Court hints at this in the above passage by noting that the "Constitution mandates government by democratic legislatures, and an executive accountable to them [emphasis added]." The subordination is clear here, but it must be taken to require more than simply the power of legislatures to delegate decision-making and overrule subsequent executive action if needed. Legislatures must be the formal site where the "marketplace of ideas" is focused and transmitted into law and policy decisions. As Hans Kelsen and MJC Vile have both observed, a legislature is a "collegial" institution facilitating open and public discussion and debate. (10) Legislatures are representative bodies specifically structured to harbour strong disagreements and conflicts within society at large. Jeremy Waldron, who argues that "disagreement is the most prominent feature of the politics of modern democracies," stresses that "[m]odern legislatures do not just respond to disagreement; they internalize it." (11) For Waldron, the rich processes and procedures of legislation are definitional to the "authority" of law itself--it is the "procedural virtues" of "legislative due process" that manage social disagreements and conflicts in an effective and legitimate manner. (12)

   The "procedural virtues" of legislation are not evident where regimes pursue policy initiatives entirely through executive order. In contrast to the "collegial" structure of legislatures, executive bodies are "hierarchical," "autocratic," and "managerial" in nature. (13) Indeed, Kelsen observes that the "democratic principle" is generally confined to the "legislative process," and does not "penetrate" the executive. (14) The extended procedures and the public nature of legislative decision-making can often focus public attention on issues, forcing a society to thrash out its internal divisions and wrestle with conflicting views. The result can be decision-making reflecting a larger consensus and decision-making with greater permanence. Executive action pursuant to broad and normless enabling clauses, on the other hand, can often proceed with a minimum of public support and public awareness, and offer little coherence or direction in crucial matters affecting society (as the oscillation between the Obama and Trump Administration approaches to environmental regulation amply reveals). The structure of the executive branch is not conducive to law and policy-making with sufficient public input to render the results democratically consistent or coherent. (15)

   The above discussion...