A public policy is a purposive course of action or inaction by government. Understanding where policies come from requires an understanding of how the formal processes of government work. In Canada, these processes are a combination of rules written in the Constitution Acts and federal and provincial governments, but also unwritten “conventions” that have evolved over time from their origins in the traditions of parliamentary democracy in the United Kingdom and Canada. Canada is technically a constitutional monarchy and a parliamentary democracy. It is also a federal country, meaning that constitutional powers are divided between the federal government and the provinces. The governments at both levels consist of the executive, legislative, and judicial branches. At the federal level, the legislature is made up of the elected House of Commons and the appointed Senate. The provincial governments are “unicameral”, meaning they don’t have a senate. (This post does not discuss either the Senate or the judicial branch.)

The Executive

The Queen is officially the head of state, but her work is delegated to her representatives in Canada: the Governor General at the federal level and Lieutenant Governors at the provincial level. Formal government actions – including legislation and regulations – require the approval of the Queen’s representatives. Approval or disapproval occurs with the “advice of the executive council”, the cabinet of the current government. By convention, this advice is always followed except in extraordinary circumstances.

The Prime Minister (or the premier at the provincial level) is the leader of the political party that holds the “confidence of the legislature”, meaning the support of a majority of the House (or the provincial legislature). That party, in particular its cabinet, forms “the government.” Ordinarily, this is the leader of the party with the most seats in the House of Commons (or provincial legislatures). When one party has a majority (as Harper’s Conservative Party has had from 2011 to present), who is Prime Minister is straightforward. It gets more complicated when no party wins a majority. It seems generally understood that the party that wins the most seats in an election gets the first opportunity to form a minority government. (They could also go into formal coalition with another party to form a majority.) Technically, the convention is that it’s up to the Queen’s representative, and it’s conceivable that the Prime Minister’s party could be given an opportunity to demonstrate they have the confidence of House even if they don’t win the most seats in the election.

The cabinet consists of individuals, selected by the Prime Minister usually from his or her own party in the legislature. Members of the cabinet are known as ministers, and are responsible for the management of one of the government’s major departments (e.g., Finance, Natural Resources, Environment). Deputy ministers are the senior public servant in each ministry. They are not elected, but appointed by the government to manage the ministry under the direction of the minister.

The prime minister and cabinet are executive officials, but they are also members of the elected legislature, creating a quite different arrangement from the one that exists in a separation of powers system like the United States, where members of the executive branch are prohibited from being in the legislature.

Legislatures in an Executive-Centred Parliamentary System

Despite being referred to as a parliamentary democracy, legislatures play surprisingly little direct role in modern Canadian governance. The executive-centred form of government results from the relationship between the prime minister (or premier) and the members of their party in the legislature. Members of the legislature are divided into party caucuses, which decide the party’s positions on votes that come up in the legislature. The government’s party has a caucus, and other parties represented in the legislature also have a caucus, the most important of which is the official opposition – the party outside the government that has the most seats in the legislature.

In practice, party members almost always vote in accordance with their party’s policies, known as “party discipline”, for several reasons. Members of the government party want to ensure their party continues in that role, so they need to work together to ensure their party maintains the confidence (majority support) of the legislature. In addition, party discipline is enforced by party rules that give the leader of the party the authority to discipline members who don’t follow government policy. Members can be removed from the caucus, meaning they need to sit as an independent, and the party leader also signs nomination paper when candidates run for office. These rules create powerful incentives for members of the legislature to vote how their party leader tells them to. Finally, cabinet positions are prestigious and higher-paying, so members of the caucus have additional incentives to seek the approval of the party leader who gets to select cabinet ministers if their party forms the government.

This combination of system incentives and party rules means that in Canada, governments are very centred around the prime minster (at the federal level) and premiers (at the provincial level). Legislatures must pass budgets and other legislation in order for the government to operate, but in practice, policies are proposed by the executive and other members of the government caucus vote according to the directions they are given. However, the power of the prime minister (or premier) is not unlimited. If the government caucus perceives that the policies of the government, or other actions of the leader, are jeopardizing the electoral viability of the party, they can threaten to withhold their support for the party’s positions. If a prime minister or premier can’t hold confidence of his party in the legislature, he or she is likely to resign, as Premier Gordon Campbell did in British Columbia in 2011.

The dominance of the executive over the legislature is limited in periods of minority government. In that case, the governing party needs to get the cooperation from members of other parties to maintain the confidence of the legislature. In the case of majority government, the power of opposition parties is limited to the threat of exposure through Question Period, an opportunity for the opposition parties to formally question the actions of the government when the legislature is in session.

Voting

Members of the legislature are selected in elections, in an electoral system known as single-member, first past the post. Jurisdictions are divided into electoral districts (different for federal and provincial elections), also known as ridings, and the candidate with the most votes (not necessarily a majority) becomes the member of the legislature from that district. Provincially, the UBC Vancouver campus is in the Vancouver-Point Grey riding, represented by NDP MLA David Eby. Federally, UBC is in the Vancouver-Quadra riding, represented by Liberal MP Joyce Murray. There is no direct election for the Prime Minister or Premier. They are the leaders of the party that forms the government after the election, and they must run for election in a riding like other party members. Prime Minister Stephen Harper, for example, is the MP for Calgary-Southwest, and is Prime Minister because the party that he leads won a majority of seats in the 2011 election.

One important measure of a political system’s representativeness is how well votes get translated into seats in legislatures. Our electoral system works well in doing so when there are only two dominant parties. However, when three or more parties get significant vote shares, the potential increases significantly for distortions between the proportion of votes in the election and the proportion of seats in the legislature. Such has been the case in Canada in recent decades. For political scientists, Canada is an electoral curiosity. Duvenger’s law states that when you have single member districts and a plurality voting rule like we do, you are likely to have a two-party system. The last time a party received a majority of votes in a Canadian federal election was in 1984, and even then Brian Mulroney’s Progressive Conservative Party just barely exceeded the threshold with 50.03% of the votes. In British Columbia, since 1972, the only election when a winning party won a majority was Gordon Campbell’s BC Liberal Party in 2001.

Minority-based majorities are not the only challenge when more than two parties are competitive in our type of system. You can also have situations when the party who wins the most votes doesn’t win the most seats. In the 1996 BC election, Glen Clark’s NDP won a majority of seats even though the NDP received fewer votes than Campbell’s Liberals (the Liberals won 41.8%, the NDP 39.5%). These types of misfires are more likely happen when there are significant differences in winning margins for the parties across ridings.

These distortions between seat and votes have increased calls for electoral reform in Canada. Demands for change have increased since 2011, when Stephen Harper’s Conservative Party of Canada won a majority in the House of Commons with only 39.6% of the vote. Harper’s party forms the conservative end of the political spectrum, meaning that more than 60% of Canadian voters that year supported parties less conservative than Harper’s. The main alternative to the Canadian system is proportional representation, which is designed to ensure that seats in the legislature closely match the proportion of votes parties receive in the election. In the 2015 Canadian election, the NDP, Liberals, and Greens all formally committed to pursuing electoral reform if elected.

The Production of Policies through Formal Processes

Production of policies at the provincial level

The accompanying figures illustrate how the various formal elements of the process combine together to form a system for the production of policies. The first diagram is for Canadian provincial governments, whereas the second generalizes for both levels of Canadian government. Public policies are authorized by enabling legislation and funded by annual budgets enacted by the legislature. The executive (cabinet and PM/premier) direct the implementation of these policies, either by passing regulations (delegated legislation) or other forms of policy, through ministries (government departments). These ministries consist of public servants (bureaucrats) who work under the supervision of a cabinet minister representing the government of the day. Implementation of these policies is designed to influence the behaviour of target actors such as business or consumers.

For example, the BC Forest Practices and Range Act (FRPA) is an act of the BC Legislative

Formal process for the production of policy in Canada

Assembly. The Forest Planning and Practices Regulation was passed by cabinet under the authority of FRPA. FRPA is implemented by the Ministry of Forest, Lands, and Natural Resources Operations, under the supervision (as of 2015) of Minister Steve Thomson.  FRPA is designed to influence the behaviour of forest companies to ensure that forest management was carried out in a way that promotes a series of values built into the law, such as timber production and biodiversity.

The system also provides for feedback and checks. Business and consumers are taxed, and the revenues from those taxes flow into government treasuries to support government services. Periodically, citizens have the opportunity to vote to keep the government in power, or if they are not satisfied with the performance of the current government, replace the government with another political party.

The judicial branch also checks the actions of government. Courts can challenge Act of the legislature as inconsistent with the Constitution, and regulations or other actions of governments as inconsistent with the authority established in enabling legislation.

Additional Resources:

For a far more entertaining version, see Rick Mercer’s take on the RMR in 2009.

Analytical Framework for Natural Resource Policy

February 6, 2015
pdf: Forces at Work in Natural Resource Policy – Hoberg course brief

In thinking and teaching about natural resource policy, I find it useful to use a framework I refer to as “forces at work in natural resource policy,” shown in the accompanying figure.   In environmental and natural resource policy, at the end of the day, we are interested in how human actions affect the economic, social, cultural, and environmental values of concern to us. We’ll refer to these as consequences, and include things like jobs, income, economic growth, regional equity, environmental impacts, quality of participation in decision-making, etc.

Policies are the rules produced by government designed to influence actions. Policies can be thought of as bundles of objectives or goals, instruments, and settings on those instruments. For example, in the area of climate policy, we could have an objective to reduce greenhouse gases by a certain amount by a particular time, an instrument of a carbon tax, and a setting of that carbon tax of $40 per tonne of carbon dioxide equivalent.

Policies are produced through governance processes, influenced by environment and markets. Governance is the structure and process through which policies are decided. It consists of three core components:

1. Who has authority to make policy decisions? In Canada, this usually involves elected decision-makers, but can also include appointed officials with regulatory authority.
2. Who participates in policy processes? Many interest groups, such as industry associations or environmental groups, play important advocacy roles in the policy process, but they do not have decision-making authority. They may have a great deal of influence over decision-makers, but they are not, in the immortal words of George W. Bush, “deciders”.
3. At what level of government are decisions made? Government authority can exist at the local or regional level, at the provincial (or state level), at the national/federal level, or at the international level. At times, authority is shared between different levels of government

By environment, we’re referring to the physical-material world, particularly biophysical and resource characteristics. Climate, for example, would be part of this variable, as would the content and quality of reserves of a particular energy source like goal or natural gas, or the quality and quantity of the standing timber stock or species habitat in a landscape. The state of available technology is also included in this variable.

With markets, we are referring to a wide range of economic variables, including prices and quantities and exchanges in the marketplace, driven by the relationship between supply and demand.

The “forces at work” framework emphasizes how these three categories of variables interact with each other to produce policies, that influence the actions of business and consumers that produce the consequences to the values of concern to us.

Decision-makers must take into account a large variety of components when comparing energy choices. A simple and straightforward way to evaluate each option is to analyse the cost of each alternative. However, many uncertainties exist, such as how energy prices, abundance, and availability will vary in the future. Furthermore, a variety of social benefits and costs, referred to as externalities, are not reflected by prices and cannot be easily transformed into monetary values. This creates the need for well-organized tools for the systematic assessment of objectives, choices, and consequences.

One such tool, multi-criteria decision-making (MCDM), represents a general term to describe an assortment of approaches aimed at explicitly accounting for various criteria during decision-making analysis. MCDMs offer various advantages: they allow for the consideration of conflicting criteria, provide a structure and organization to guide a transparent analysis process and can handle both qualitative and quantitative criteria (Belton & Stewart, 2002). The MCDA process is generally separated into 5 general steps: (1) definition of decision context, (2) identification of evaluation criteria, (3) identification of alternatives, , (4) evaluation of each alternative against each criterion, and (5) trade-off analysis. This brief presents an overview of each step of a simple MCDM for comparing energy alternatives.

1. Definition of the decision context

This first step aims at defining the main question or problem that needs to be addressed by the MCDM. Simply put, it aims at identifying “what is the decision that needs to be made”? The decision context when comparing energy policy could be defined as “how to get the energy services we need at the least possible economic, environmental, and socio-political cost.”

2. Identification of evaluation criteria

The evaluation criteria are the key factors that inform the evaluation of the alternatives and the trade-off analysis. They can be understood as the “aspects that matter in the decision-making process”. A good set of criteria should (1) consider all the important factors, (2) be concise and understandable and (3) contribute independently to the overall performance of an alternative. Furthermore, the evaluation criteria have to be measurable, either quantitatively (when possible) or qualitatively. When comparing energy alternatives, seven important criteria should be considered:

• Abundance refers to the viability and availability of both current and potential future sources of energy. For instance, renewables offer unlimited reserve, whereas the abundance of fossil fuels is limited based on the world proved oil reserves. The abundance could be calculated in years of potential supply given consumption rate.
• The cost per unit of energy alludes to the societal cost of generating electricity and can be calculated quantitatively ($/MWh) for each alternative. This calculation must include all the costs, including the initial investment, the discount rate and the cost related to extraction, operation and maintenance.
• Reliability is the capacity of an energy source to generate consistent energy output to meets societal energy demand. A lack of reliability can lead to interruptions when the electricity supply is lower than the demand.
• The environmental impacts are evaluated based on the environmental footprint. An important environmental factor to consider is the contribution to climate change through GHG emissions, which can be evaluated in terms of carbon intensity (CO₂eq/unit of energy). Other important environmental impacts include air, land and water pollution and toxic contamination and the impact of energy production on land use change (e.g., deforestation, forest degradation).
• Extreme events have low or unknown probability of occurrence and are often associated with serious consequences and impacts on humans and the environment. Some of their impact and risk of occurrence can be minimized, but uncertainties will always remain, highlighting the importance of considering the extreme event risk associated with each energy option.
• Geopolitical risk focuses on the impact of international politics on the attractiveness of energy options. For instance, geopolitical factors can influence the stability, reliability, availability and price of energy options. A recent example is the drastic drop in oil price caused by a complex combination of geopolitical factors.
• Public acceptability is fundamental for the implementation of any energy alternative. Public opinion on energy options varies, and the political risk associated with each of them greatly influence decision-makers.

3. Identification of alternatives

The alternatives represent the options that may offer solutions to the problem. There are four major options that can address the growing demand for energy services: (1) energy efficiency, (2) nuclear power, (3) renewables, and (4) fossil fuels. (Each of these categories has many specific technological choices.)Each of these alternatives offers advantages and disadvantages in terms of economic, environmental and socio-political components that need to be evaluated. For example, energy efficiency improvement reduces the need for energy generation, but can involve important up-front investments. Nuclear power offers energy with far fewer greenhouse gases emissions or air pollution, but presents environmental and social concerns due to nuclear waste and weapons proliferation. Renewables offer an unlimited flow of clear energy, but their reliability sometimes depends on environmental conditions such as wind or solar energy. Fourth, fossil fuels represent a very price-competitive option, but are non-renewable and generate harmful GHGs and other air pollutant emissions (Jaccard, 2005).

4. Evaluation of each alternative against each criterion

This step involves the assessment of the performance of each alternative against each criterion. To do so, each criterion should be given a unit ($/MWh) or scale (excellent, good, poor) of measurement. For instance, the following figure (reproduced from IRENA, 2015) illustrates the estimated costs of producing electricity (USD/kWh) in 2014 and 2025 (projected) for various renewable energy sources compared to fossil fuels’ electricity costs. (LCOE is the levilized cost of electricity.) Not all criteria need to be measured with the same unit or scale.

5. Analyse trade-offs

The goal of trade-off analysis is to identify the alternative that better meets the main objective. It is very rare that one alternative will be superior for all criteria, meaning that most MCDM will involve trade-offs. Many techniques can be used to evaluate trade-offs and compare the performance of different alternatives. One such approach is the use of a trade-offs matrix, a table where you list alternatives on one axis and your criteria on the other. In each cell, you should provide meaningful information about the consequences of that alternative for that particular criterion. The following table (reproduced from Jaccard, 2005) provides an example of a trade-off matrix evaluating the projected cost, the extreme event risks and the geopolitical risk of the four energy options previously presented.

In addition, MCDM approaches normally employ various weighting techniques to compare the different alternatives, ranging from simple (ranking) to extremely sophisticated (modelling, algorithms). These techniques can broadly be separated into three categories: (i) value measurement models, where numerical scores are given to each alternative through the assessment of the criteria; (ii) goal, aspiration or reference level model, where desirable levels or goals are assigned for each criterion as a basis for assessing the alternatives; and (iii) outranking models, where alternatives are compared pairwise with the criteria to identify if there is a preference for one of them (Belton and Steward, 2002, p. 9).

References

Belton, V., & Stewart, T. J. (2002). Multiple Criteria Decision Analysis: An Integrated Approach. Springer Science+Business Media Dordrecht.

IRENA. (2015). Renewable Power Generation Costs in 2014.

Jaccard, M. K. (2005). Sustainable fossil fuels the unusual suspect in the quest for clean and enduring energy. Cambridge, UK; New York: Cambridge University Press. Accessible from UBC Library

Other recommended reading:

Stagl, S. (2006). Multicriteria evaluation and public participation: the case of UK energy policy. Land Use Policy, 23(1), 53–62. doi:10.1016/j.landusepol.2004.08.007

Chief Roger William celebrating Supreme Court decision (from UBCIC)

January 20, 2015

pdf of this post: Hoberg course brief – aboriginal law

The relationship between Canadian governments and Aboriginal groups has shifted dramatically over the past several decades, but has yet to reach any stable equilibrium that clarifies their relative roles. The core uncertainty is whether Crown governments have the legal authority to proceed with a project if affected First Nations are strongly opposed. This issue received renewed attention when the Canadian Supreme Court issued its Tsilhqot’in Nation v British Columbia decision in June 2014. Much attention has been paid to the emphasis the Supreme Court placed on the need to obtain consent from aboriginal title-holders before proceeding with projects on title land. But as we will see, the shift in the relationship between the government and First Nations on resource project decision-making is not as significant as many have argued.

Structural uncertainty over aboriginal title in British Columbia

First, a bit of background on the continuing challenge to reconcile aboriginal title with Crown or settler title in British Columbia is useful. While treaties were established throughout much of Canada, there are few treaties in BC. The settler governments simply asserted sovereignty over BC, claiming that, prior to European settlement, legally BC was terra nullius or “empty land,” a deeply offensive notion to First Nations who have resided throughout the province, with established system of governance, for many millenia. In response to litigation by First Nations, the Supreme Court began slowly chipping away at this doctrine, first (in the Calder case in 1973) by granting that unless it was formally “extinguished” aboriginal title exists.

However, establishing that a particular First Nation has title to a particular area of the province requires an exhaustive legal process. The current situation throughout much of British Columbia is that aboriginal title has been asserted (in some cases by multiple First Nations over the same land) but not yet legally established in a way that it is recognized by the Crown government.

The breakthrough Tsilhqot’in case

The Tsilhqot’in case was historic because it was the first time courts recognized aboriginal title for BC First Nations. It helped clarify the process for making and considering title claims, and what title means once it has been granted. It also clarified the relation between First Nations and Crown governments on aboriginal title land. The court ruled that “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” (paragraph 76). However, in the very next sentence, the court qualified this right to consent:  “If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982”(paragraph 76).

The justification test for infringing Aboriginal title

The key question then becomes the “justification test.” The Supreme Court articulated the test as follows: “To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group” (paragraph 77). Each of these conditions requires further elaboration.

The duty to consult and accommodate exists whether or not title has been established. When the Crown is contemplating actions that it thinks might affect aboriginal title, its obligation to consult the affected First Nation are defined by a spectrum articulated in the Court’s 2004 Haida decision: “In general, the level of consultation and accommodation required is proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right” (paragraph 79).

Objectives that were considered “compelling and substantial” were articulated in the Supreme Court’s 1997 Delgamuukw case. The Tsilhqot’in case simply quoted the Delgamuukw decision on the definition: “In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title.  Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis” (paragraph 83).

The third part of the justification test requires the action to be consistent with the government’s “fiduciary duty” to First Nations. This is the most confusing part of the Tsilhqot’in decision. Usually, fiduciary duty requires the fiduciary (in this case the Crown) to ensure the interests of the principal (in this case the First Nations) are being met. In Canadian law, however, fiduciary duty to First Nations means something different. It essentially requires simply that Aboriginal rights need to be balanced with other interests.

The Tsilhqot’in decision did elaborate this requirement is several ways. It held that the duty “infuses an obligation of proportionality” into the process: “Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact)” (paragraph 87). In addition, the Court added a specific future-oriented test: “incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land” (paragraph 86).

A useful way to think about these tests is to imagine how the BC government would try to make them work for Site C, or the federal government for one of the oil sands pipeline proposals. They clearly fall within the allowed objectives, so the only question is whether they meet the other parts of the justification test.

How much does the Tsilhqot’in decision change things?

What impact the Tsilhqot’in decision will ultimately have is uncertain, but legally it changes far less than many assume. In the typical situation where title is asserted but not proven, there is no change from the vague standards articulated in the 2004 Haida and Taku decisions: consult always, accommodate if the claim is strong and the infringement significant, but there’s no veto for the First Nation. What’s new about the Tsilhqot’in decision is that title was finally granted to a particular First Nations over a particular area. But even in that case, it appears that title can be still be infringed with resource projects such as dams or pipelines so long as the Crown goes through the careful justification process. It seems quite clear that legally, First Nations do not have a veto or right to consent, even where title has been legally established.

Wait: Doesn’t the UN give First Nations the right to consent?

First Nations groups frequently refer to the provision in United Nations Declaration on the Rights of Indigenous Peoples that states “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources” (Article 32.1). However, the UN Declaration is not legally binding on signatories. When it finally endorsed the Declaration in November 2010, the Government of Canada took pains to note that it objects to the provision of “free, prior and informed consent when used as a veto.”  In explaining why it would endorse the Declaration if it had these objections, the government stated: “We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” That legal framework is the one described above, that does not give First Nations a right to consent.

Hoberg’s Hypothesis: It’s politically impossible for natural resource projects in Canada to proceed if there is significant opposition from directly affected First Nations

The law seems clear that there is no legal right to consent. But there may be an emerging political, or de facto, obligation of Crown governments to obtain the consent, or at least avoid the adamant opposition of, directly affect First Nations. I argue that it may now be the case that, while the law falls short of granting a right to consent to First Nations, it may now be politically impossible for natural resource projects in Canada to proceed if there is significant opposition from directly affected First Nations.

The Prosperity Mine case in British Columbia has been quite revealing. The proposed mine went through both the BC and Federal environmental assessment processes. There were significant environmental concerns with the proposal, and First Nations in the area were resolutely opposed. The BC government considered these objections and approved the project. But the Harper Government, known for its support for resource development, examined the same concerns and rejected the project, citing among other reasons the strong objections of local First Nations to the proposed use of a cherished lake as a tailings pond. The project was redesigned to avoid dumping in the lake and resubmitted, but the local First Nations still opposed the project, and the Harper government again rejected it.

We now have several live cases that will test this hypothesis. Both Site C and the Northern Gateway Pipeline have been authorized for construction by Crown governments despite the explicit, vehement opposition of direct affected First Nations. Whether or not shovels are ever put in the ground for either project will be an important test of the hypothesis.