Marine Policy 28 (2004) 171–184

(Not so) ‘‘Smart regulation’’? Canadian shellfish aquaculture policyand the evolution of instrument choice for industrial development

Michael Howletta,*, Jeremy Raynerb

aDepartment of Political Science, Simon Fraser University, Burnaby B.C., Canada V5A 1S6bDepartment of Political Science, Malaspina University-College, Nanaimo B.C., Canada

Received 9 June 2003; accepted 24 June 2003

Abstract

After almost a century of benign neglect, Canadian aquaculture policy emerged in its modern form after 1984, when the federal

government led a complex intergovernmental process of policy renewal. After an initial period in which the foundations for the new

policy were laid through intergovernmental agreements, both the federal and provincial governments adopted numerous policies

aimed at the promotion of the aquaculture industry. This paper assesses these developments and trends in Canadian aquaculture

policy against the requirements for ‘‘smart regulation’’ set out by Neil Gunningham. It finds the Canadian efforts to be wanting,

focussing too much on substantive policy tools designed for aquaculture industry development and not enough on the procedural

tools required for policy legitimation. As a result, the industry, and Canadian government policy, now face severe potential

legitimation problems.

r 2003 Elsevier Ltd. All rights reserved.

Keywords: Aquaculture policy and regulation; Shellfish; Canadian marine policy; Self-regulation; Network governance

1. Introduction

Shellfish aquaculture in Canada is a small but rapidlygrowing resource sector. Although shellfish volumes andvalues remain much smaller than their finfish equiva-lents, and the shellfish sector itself is dominated bytraditional wild fisheries, it is widely believed thatshellfish aquaculture will be an increasingly importantcomponent in the years to come. The industry hassustained very rapid volume growth rates over the lastdecade and its share of total shellfish productioncontinues to climb. Rosy forecasts are common, suchas the widely quoted report by Coopers Lybrand for thefederal western economic diversification (WED) pro-gram suggesting that the value of British Columbiashellfish production could climb from $12 million to$100 million between 1997 and 2006. The possibility ofcreating over 1000 new jobs in coastal communities hardhit by declines in other resource sectors helped persuadethe BC government to resume issuing on new shellfish

farm tenures and launch a shellfish developmentinitiative aimed at doubling areas under tenure overthe same decade. WED’s opposite number on theAtlantic Coast, the Atlantic Canada OpportunitiesAgency (ACOA) helped broker a shellfish aquacultureworking capital fund to address a chronic shortage ofworking capital in what has traditionally been anindustry dominated by very small producers unable toraise capital by conventional means.Yet, in spite of the optimism and the apparent

convergence of government policy on promoting aqua-culture development, progress remains limited in manyparts of Canada. In BC, the value of farmed shellfishhad barely reached $26 million by 2001. Problems ofintergovernmental coordination, premature tenure ex-pansion announcements without adequate consultationof local communities, uncertainty surrounding unre-solved First Nations’ claims and their impact on theforeshore and coastal waters, lack of processing facilitiesand distribution networks for expanded production, anda host of other factors have surfaced. In PEI, perhapsthe most successful example of industry expansion,falling mussel prices, allegations of dumping in USmarkets, the appearance of exotic predators, and

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*Corresponding author. Tel.: +1-604-291-3082.

E-mail addresses: howlett@sfu.ca (M. Howlett),

rayner@mala.bc.ca (J. Rayner).

0308-597X/$ - see front matter r 2003 Elsevier Ltd. All rights reserved.

doi:10.1016/S0308-597X(03)00086-1

increasing conflicts with other users have marked theexpansion of the industry. A high profile action in theFederal Court by the Sierra Club opposing a 1400 acremussel aquaculture development by a PEI companynear the Cabot Trail in Nova Scotia suggests thedifficulty of expanding operations beyond the Islandand is indicative that shellfish aquaculture, widelypromoted as a ‘‘green’’ industry, is now on theenvironmentalists’ radar screen. In BC and elsewhere,aquaculture development now faces serious legitimationproblems which threaten not only the future industry,but those operations already established [1].This record raises many issues related to how policy-

making in this sector has been designed and theprinciples followed by policy-makers in their activities.As shall be argued below, policy-makers have generallyignored or failed to act in accordance with recentthinking on policy design and governance and insteadhave carried forward a policy process typical of earliereras in which resource development was accepted as anend in itself by local populations who were generallysupportive of its expansion. In the modern era, however,more sophisticated policy-making is required which notonly focuses on the use of policy instruments to promoteindustrial activity, but also those required to legitimatethe process [2]. Rather than create a system of ‘smartregulation’, as the Australian political scientist NeilGunningham has termed it, [3] which incorporates acareful mix of both ‘substantive’ and ‘procedural’ policyinstruments, Canadian policy-makers have until recentlypursued a single-minded focus on new substantiveinstruments for industrial promotion, while leavingexisting weak procedural instruments—notably indus-try-based advisory panels—in place. Although they arecurrently responding to the emerging crisis in the sectorwith a plethora of consultations and other proceduraldevices, the requisite co-ordination between the twocontinues to be lacking and these ill-considered con-sultations themselves are now engendering additionalproblems in the sector.1,2 This article provides somebackground on the current situation and an assessmentof policy failures in the sector, viewed through the lensof (not so) ‘smart regulation’.

2. The concept of ‘smart regulation’

Aquaculture raises complex regulatory issues. Interms of horizontal coordination across different policyareas, aquaculture can be a hazard to navigation, tohabitat or to human health. In terms of verticalcoordination of policy, the location of aquaculture

activities on the foreshore and nearshore involves everylevel of government from municipal to international. Itis not surprising, then, that aquaculture has proved atest bed for new theories of ‘governance’ designed todeal with such complexity. These theories generallypromote looser regulatory arrangements in whichgovernments attempt to steer networks of actors in adesired direction rather than manage the sector throughtraditional policy instruments such as regulation or‘‘command and control’’ (on new governance arrange-ments, generally, see [6]). The use of ‘‘next generationarrangements’’—reflexive regulation, information in-struments, regulatory pluralism, partnerships and parti-cipatory governance —is controversial (see, for instance,the concerns raised in [7]). Critics have argued thatgovernments are not so much steering as drowning. Thissection looks at the policy instruments generally. In thefollowing section, their application to the Canadianaquaculture sector on both the east and west coasts isexamined.

2.1. Policy instruments as the basic tools of policy design

The variety of instruments available to policy-makersto address a policy problem is limited only by theirimagination. Scholars have made numerous attempts toidentify policy instruments and classify them intomeaningful categories (for a summary of variousclassification schemes, see [8]). Unfortunately, manysuch schemes are either pitched at a very high level ofabstraction making them difficult to apply in practicalcircumstances or dwell on the idiosyncrasies of parti-cular tools, thereby limiting the range of the descriptionsand explanations they provide. A scheme that issufficiently abstract to encompass the various possibi-lities, yet concrete enough to correspond with theway policy-makers actually interpret their choices, isrequired.The origins of such a scheme can be found in

Lasswell’s insight that rather than face a choice amonga huge number of policy tools, governments havedeveloped a limited number of ‘‘strategies’’ whichinvolved ‘‘the management of value assets in order toinfluence outcomes’’ [9]. Understanding these basicstrategies, and their component instruments, can beaccomplished, according to Lasswell, by understandingthe resources [10] that governments have at theirdisposal.Systematic instrument typologies have emerged by

careful analysis of governing ‘‘resources’’. A simple andpowerful one has been offered by Christopher Hoodwho proposed that all policy tools utilized one of fourbroad categories of governing resources [11] (on earlier,or similar, resource-based schemes see [12]). He arguedthat governments confront public problems through theuse of the information in their possession (‘nodality’),

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1On the issue of poorly integrated consultations, generally, see [4].2With respect to the problems encountered in the aquaculture sector

see [5].

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184172

their legal powers (‘authority’), their money (‘treasure’),or the formal organizations available to them (‘organi-zation’) or ‘‘NATO’’. Governments can use theseresources to manipulate policy actors by, for example,withdrawing or making available information or money,using their coercive powers to force actors to undertakeactivities they desire, or simply undertaking the activitythemselves using their own personnel and expertise.Using this idea of ‘‘statecraft resources’’, a basic

taxonomy of instrument categories can be set out. Fig. 1presents such a classification scheme with illustrativeexamples of the types of policy tools found in eachcategory.

2.2. Smart regulation: the concepts of instrument

‘‘mixes’’ and optimal policy design

Inspection of the instruments listed in Fig. 1 showsthat policy tools tend to fall into two types: substantive

instruments—like public enterprises or user charges—designed to directly deliver or affect the delivery ofgoods and services in society; and procedural instru-

ments—like the creation of advisory committees andgovernment re-organizations—used to alter aspects ofpolicy deliberations [13]. Early studies of instrumentchoice tended to focus only upon one type, and to lookat instances of single instrument selection. On the basisof numerous such case studies, scholars attempted todiscern the general reasons why governments wouldchoose one category of instrument over another. Itbecame quickly evident to investigators, however, thatpolicy sectors and their component programmestended to involve the use of ‘‘bundles’’ of instrumentsrather than single tools. Sophisticated students ofpolicy instruments turned their attention to describingthese packages of implementation techniques, with theaim of discerning what combinations of instrumentswere self-reinforcing, which were redundant, andwhich were actually counter-productive (on optimalmixes see [14]).Such studies have generated insights into implementa-

tion activities and instrument use which shed light onthe possibilities and constraints affecting policy pro-cesses and the ability of practitioners to improve policyimplementation [15]. While some studies undertaken inthis vein have been, and continue to be, influenced bythe idea that instrument choices are purely technical innature, and hence open to rapid change and re-configuration, most studies have linked instrumentchoices to larger scale and more permanent arrange-ments or implementation styles [16].The term ‘‘smart regulation’’ was first coined in the

context of environmental policy to describe a post-command and control implementation style expected tobe capable of dealing with increasingly technically andpolitically complex policy issues. The authors noted the

increasing evidence of mutual exhaustion and stalematein the long-running debate between the defenders oftraditional regulatory approaches to environmentalproblems and the advocates of deregulation [17]. Asthey pointed out, while the push for deregulation hasbeen extremely influential in shaping public policies inmany countries across several policy sectors, there isalso a growing unease with simple-minded hostility togovernment and faith in market-based solutions to everypolicy problem. Academic commentators have shownhow the loaded phrase ‘‘command and control’’obscured a number of success stories in environmentalregulation, while environmental NGOs continue tocampaign for the use of traditional regulatory instru-ments to achieve a guaranteed minimum level ofenvironmental protection. Nonetheless, argumentsabout the relative cost and inefficiency of purelyregulatory approaches continue to carry weight in anera of fiscal responsibility, cost cutting and the down-loading of responsibilities to cash-strapped subnationalgovernments and municipalities. Smart regulation pro-poses a shift to an implementation style which recog-nizes that government intervention will continue to takeplace ‘‘but selectively and in combination with a rangeof market solutions and public and private orderings’’[18]. As its authors recognize, smart regulation takes itsplace in a larger literature about the transition from amore hands-on, interventionist style of government to‘‘governing at a distance’’, ‘‘governance’’ and the widelyemployed metaphor of governments achieving publicpurposes by ‘‘steering’’ complex networks of public andprivate actors rather than directing an expensive andpossibly ineffective bureaucracy.As the concept has evolved, smart regulation has

come to focus on a small number of key suggestions:1. The importance of designing policies that employ a

mix of policy instruments carefully chosen to createpositive interactions with each other and to respond toparticular, context-dependent features of the policysector.2. The importance of considering the full range of

policy instruments when designing the mix rather thanassuming that a choice must be made between regula-tion and markets.3. Nonetheless, in the context of continuing pressures

on governments to do more with less, incentive basedinstruments, various forms of self-regulation by indus-try, and policies that can employ commercial and non-commercial third parties to achieve compliance, such assuppliers, customers and the growing cast of auditorsand certifiers, are favoured instruments of smartregulation.4. Finally, smart regulation emphasizes the impor-

tance of the search for new policy instruments to meetthe challenges of governance. ‘‘Next generation’’ policyinstruments, such as information instruments, various

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 173

techniques of network management, etc. are particularlyimportant here [19].

3. The Canadian aquaculture implementation style:

the existing policy instrument mix

3.1. Substantive instruments in use in the Canadian

shellfish aquaculture sector

The Canadian approach to shellfish aquaculture, likethe Canadian approach to almost every other policyarea, is deeply affected by Canadian federalism. Aqua-culture is not mentioned by name in the ConstitutionAct (1867) or in any subsequent Constitution Act oramendment. Federal involvement is based directly onjurisdiction over sea coasts and inland fisheries(s. 91(12)), over navigation and shipping, and overIndians and land reserved for the Indians and the federalpower to enter into international treaty obligations.Indirectly, federal jurisdiction also derives from federalgovernment activity in the area of environmentalprotection, and from case law concerning the regulationof international and interprovincial trade. Finally andmore speculatively, the federal declaratory power mightbe used to bring an aquaculture project or projectsunder federal jurisdiction and the non-mention ofaquaculture might provide grounds for exercise of its‘‘residual’’ power over undefined areas. Provincialinvolvement, on the other hand, is based on constitu-tionally protected jurisdiction over property and civilrights within the province, over provincial crown lands,over matters of a merely local or private nature withinthe province, over municipal institutions and over theregulation of lands underlying freshwater lakes, riversand tidal areas within bays, inlets and estuaries.Provincial jurisdiction also derives from existing pro-vincial activity in the field of environmental protectionand from case law supporting provincial rights toimplement treaty obligations entered into by the federalgovernment in areas of exclusive provincial jurisdiction.

The Constitution Act (1867) recognizes a sharedjurisdiction over agriculture, which has not, as yet,proved significant for aquaculture policy.In practice, this jurisdictional tangle has proved a

considerable obstacle to the sustainable development ofthe shellfish aquaculture industry. While the industryhas complained about the added cost of regulatoryoverlap and duplication, federal–provincial blame-avoidance strategies have contributed to a dangerousvacuum in addressing the potential social and environ-mental impacts of the industry. Recognizing thejurisdictional difficulties that the nascent industry faced,when aquaculture entered into its most recent period ofexpansion in the 1980s the issue was tackled within theprevailing model of intergovernmental federalism. TheFirst Ministers issued a statement of national goals andprinciples for aquaculture at their meeting in 1986. Thestatement was followed by a series of memoranda ofunderstanding (MOU) between the provinces andOttawa that attempted to provide the basis of a workingrelationship between the two levels of governmenttailored to the circumstances of each province bydelineating agreed upon areas of exclusive jurisdictionand areas for intergovernmental cooperation. Whilethere was a certain amount of learned debate about thelegal status of the MOUs at the time [20], andenvironmental organizations have periodically madenoises about testing what they see as an unconstitutionaldelegation of powers from (environmentally friendly)federal to (industry-dominated) provincial governmentsin violation of the basic scheme of ss. 91 and 92 ofConstitution Act, there have been no cases to date.In 1984, the federal government designated the

Department of Fisheries and Oceans (DFO) as the leadagency for aquaculture. While this move clarified thelines of responsibility in the federal government,3 it wasnot without its drawbacks. As critics of DFOs role in

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Nodality TreasureGrants and Loans

Self-Regulation User Charges

Advertizing Market Creation

Interest Group Creation and Funding

Authority OrganizationInformationMonitoring and Release Advice and Exhortation

Commissions and Inquiries

Command and Control Regulation

Standard Setting and Delegated Regulation Advisory Committees and Consultations

Taxes and Tax Expenditures

Direct Provision of Goods and Services and Public Enterprises Use of Family, Community and VoluntaryOrganisations

Government Reorganization

Source: Adapted from Christopher Hood, The Tools of Government (Chatham: Chatham House, 1986). 124−125

Fig. 1. Policy instruments, by principal governing resource (Cells provide examples of instruments in each category).

3 It is often claimed that there are at least 17 federal departments and

agencies with a finger in the aquaculture pie. In fact, from a regulatory

point of view, there are just three key departments, DFO, Environment

Canada, and the Canadian Food Inspection Agency.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184174

aquaculture development continue to complain, itplaced aquaculture within a ministry that had stronghistorical links with capture fisheries and long-estab-lished connections with fisheries clients on both coasts.Moreover, it effectively foreclosed the debate aboutwhether aquaculture was more appropriately under-stood as a kind of farming, to which an agriculturalrather than a fisheries model of regulation could beapplied. Although the MOUs in most provinces gaveprovincial agencies control over site selection; over leaseor licence approval, including the terms and conditionsattached to leases and licenses; and over most opera-tional aspects of shellfish farms, DFO exerts a powerfulinfluence at a distance over many of these decisions.More significantly still, DFO exerts this influencethrough two older pieces of classic ‘‘command andcontrol’’ legislation, the Fisheries Act and the NavigableWaters Protection Act (NWPA). Depending on thenature of the process for interagency referrals developedin each of province, where there is the possibility ofharmful alteration, disruption or destruction of fishhabitat DFO thus has significant ability to deny orrequire modification of proposals for new or amendedleases and licences under s. 35 of the Fisheries Act.Together with the provision of the NWPA that triggersan environmental assessment under the CanadianEnvironmental Assessment Act where a ‘‘work’’ maybe a significant hazard to navigation, the ability of DFOto cause delays in the approvals process has been asignificant irritant to the industry and has resulted incalls for a ‘‘single window, one-stop shopping’’ ap-proach. At the operational level, the potential for someshellfish farming practices to fall under s. 36 of theFisheries Act, ‘‘the deposition of deleterious substancesinto waters frequented by fish’’, and the regulatoryregimes surrounding the capture and movement of seedstocks and the movement of new species such as abalonehave also caused problems. As is common in Canadianenvironmental statutes, both ss. 35 and 36 of theFisheries Act are written to allow extensive adminis-trative discretion and the lack of transparency in theexercise of this discretion is often at issue.4

Concerns about the regulatory regime surroundingsanitation and food safety tend to be rather different.Federal activity in this area centres on the CanadianShellfish Sanitation Program (CSSP) jointly adminis-tered by DFO, the Canadian Food Inspection Agencyand Environment Canada under the authority of the

Fisheries Act, Management of Contaminated FisheriesRegulations, the Fish Inspection Act, and Fish Inspec-tion Regulations. The CSSP is a comprehensiveprogram of water quality monitoring, and control ofharvesting, processing and movement of shellfishdestined for human consumption. Again, the regime isof the traditional command and control type. Under anagreement dating back to 1948, the regulations areclosely coordinated with those of the major exportmarket, the American National Shellfish SanitationProgram guidelines. Three sets of issues have surfacedwith respect to CSSP. The first centres on the cost ofadministering the program in light of industry expansioninto new areas where water quality monitoring will haveto be undertaken. The federal government has re-sponded to these concerns by including new money forwater quality monitoring in the Program for SustainableAquaculture announced in 2000, but there has also beeninterest in private–public partnerships to extend thereach of the program. Equally seriously, we have seenthe beginning of new environmental concerns that theCSSP monitors for a restricted range of contaminants,largely those of bacteriological origin at the expense ofother hazardous materials such as heavy metals anddioxins. Finally, there is the larger issue of theappropriateness of this regulatory regime as a meansof realizing the larger objective of improving waterquality and protecting shellfish farming areas, often themost accessible for markets and transportation linkswhich are most at risk from human and agriculturalsources of contamination. In Atlantic Canada, roughlyone third of the area classified as suitable for shellfishgrowing is currently closed due to contamination and inBC, the proportion may be even higher.5

From the beginning, the regulatory regime wascomplemented by subsidy and expenditure instruments.These included the development and continuing supportof an aquaculture research capacity in DFO andCanadian universities, a variety of federal tax incentivesfor farming and small business, the extension of farmcredit facilities to shellfish farmers, and various targetedexpenditures through the regional development agen-cies, currently ACOA and, to a lesser extent, WED.Nonetheless, supporters of aquaculture developmenthave continued to look enviously at the substantialsubsidies enjoyed by Canadian farmers, keeping alivethe agricultural model for aquaculture regulation. Asthe federal Commissioner for Aquaculture Developmenthas argued, while the resolution of the regulatory issueswill provide some support to the industry, ‘‘the federalgovernment should also analyse the appropriateness ofother measures to ensure that aquaculture and other

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4Both sections contain provisions for habitat to be harmed or

deleterious substances to be discharged by Regulation or by

Ministerial Order (Fisheries Act RSC ss. 35 (2), 36(4), (5), (6)),

creating the possibility for a classic ‘‘permitting’’ regime as has been

proposed by the Commissioner for Aquaculture Development: ‘‘By

providing clear and transparent standards, regulations under section

36 could give confidence to stakeholders that environmental interac-

tions are managed (Reg Review, p. 23).

5For Atlantic Canada, see the CSSP site, http://www.ns.ec.gc.ca/

epb/sfish/cssp.html (visited April 12, 2003); for BC, personal commu-

nication.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 175

food sectors in Canada operate on a level playingfield.’’6 He noted especially the various kinds of incomesupport and stabilization programs, including cropinsurance, enjoyed by terrestrial farmers but not bytheir marine counterparts.At the provincial level, in British Columbia, cultiva-

tion of the native oyster (Ostrea lurida) was anoutgrowth of the original natural fishery, which hadbeen seriously overexploited during the 1930s. However,slow growth rates and high mortality associatedwith native oyster culture and similar efforts to farmthe eastern oyster (Crassostrea virginica) led to anindustry based almost exclusively on the Japanese oyster(C. gigas), introduced into BC around 1912. Spat wasoriginally brought from Japan, but C. gigas soonnaturalized in the Strait of Georgia. Pendrell Soundwas reserved as a seed-producing area by Order inCouncil under the provincial Land Act as early as 1950.Farming of other species was slow to develop, but by thelate 1980s overexploitation of the clam fishery andadvantageous clam prices led to experiments with clamaquaculture, often on oyster leases, and to the develop-ment of significant farmed clam output. In recent years,scallop farming in waters too cold for other species andexperiments with potentially valuable new species suchas mussels, abalone and sea urchins have extended thescale and variety of the industry. In 2001, BC produced8.8 million tonnes of farmed shellfish with a wholesalevalue of $26 million (up from 6.6 million tonnes worth$12 million in 1996). By contrast, wild shellfish landingsin 2001 were recorded at 19.8 million tonnes with awholesale value of $186 million.Early regulatory activity was largely driven by public

health and food safety considerations. Sanitary regula-tions were introduced in 1949 but were unable toprevent several outbreaks of paralytic shellfish poison-ing (PSP) leading to closures and restrictions. Between1964 and 1995, the province operated a ShellfishMarketing Board in cooperation with the BC OysterGrowers Association in an effort to maintain publicconfidence in the industry. Oyster growers were givenaccess to the Crown foreshore through a system of leasesand licenses (for many decades administered by theMinistry of Forests and Lands), with the usualdiscretionary powers for the Minister to impose termsand conditions upon and to require certain perfor-mances from leaseholders and licensees. Meanwhile,farmers’ activities were regulated by the provincialFisheries Act and its accompanying regulations (inaddition to the regime established by the federalFisheries Act and its regulations). The regulationssought to control the importation of oysters into theprovince and the movement and sale of oystersharvested from contaminated beaches, setting up a

registration scheme for all shellfish farmers and impos-ing some basic harvest reporting requirements. Aqua-culturalists were also designated ‘‘farmers’’ forprovincial taxation purposes and entitled to a varietyof tax exemptions and deductions.Beginning in the 1980s, promotion of shellfish

aquaculture became the responsibility of the Ministryof Agriculture and Fisheries (later Agriculture, Foodand Fisheries (MAFF)), which was identified as the leadagency ‘‘to develop aquaculture into an important food-producing enterprise in British Columbia’’, (p. 12). Theprovince has made extensive use of financial instru-ments, including an Aquaculture Incentive Program anda variety of other credits and incentives related tofarming and small business. In common with otherprovinces, BC negotiated a memorandum of under-standing (MOU) with the federal government in 1988that aims to clarify the relationship between the twolevels of government with respect to aquaculture andpromote the orderly development of the industry. Underthe BC MOU, the federal government retains respon-sibility for the protection and conservation of wildstocks, the protection of navigable waters, the permit-ting regime for the collection of wild stock and spat, andshellfish sanitary requirements. The province retainscontrol over licensing, the management of the industry,the size and location of facilities, and industry practices.Nonetheless, BC remains unusual amongst the coastal

provinces in that it has no Aquaculture Act or otherkind of consolidation. Consequently, the BC regulatoryframework is a patchwork of old and new regulations.Thus environmental impacts are largely addressedthrough the Waste Management Act, another tradi-tional regulatory instrument enforced by inspectorsfrom the Ministry of Water, Land and Air Protection,and key social issues, such as noise, odour, lights andhours of operation are addressed as matters of workersafety or as the subject of municipal zoning and bylaws,potentially in conflict with provincial regulations Themajor initiative in this respect has been the draftindustry code of practice (COP). Developed in closeconsultation with industry, the COP was intended to bea new instrument of coregulation. Largely descriptiveand lacking any performance standards, the draft COPwas essentially a statement of current best practices inwhich the agricultural model of aquaculture regulationresurfaced. Complaints about shellfish farm practiceswould be directed to the Farm Practice Review Boardcreated under the Farm Practices Protection (Right toFarm) Act, where the COP could be used as a guide to a‘‘normal farming practice’’.The principal instrument of subsidy at the provincial

level was the Shellfish Aquaculture Working CapitalFund, created to provide loans of up to $30,000 or 65%of total project costs and intended to address the chronicshortage of working capital in the industry. BC was

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6OCAD Reg Review, p. 20.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184176

already distinct from the Atlantic Provinces in that,although a wide range of support programs is available,the Fund was the only example of a BC aquacultureproduction support initiative focused on providingdirect support for individual entrepreneurs.7

On the east coast, New Brunswick has had an oysterindustry for over a century. Public oysters beds weredecimated by Malpeque disease in the 1950s andlandings dropped from 3594 ton in 1949 to only2.7 ton by 1960.8 The industry was revitalized by the1989 Canada–New Brunswick MOU and oyster farmsnow report landings of 120–160 tons annually. In 2000,there were 1593 licences in the eastern New Brunswickarea as well as clams in the southwestern area. Totaleconomic value was estimated at $88 million (average1995–1997), with total employment at 2048 [21].The industry has been heavily promoted in recent

years. Development funds such as the Regional Econom-ic Development Agreement (REDA), a federal/provincialdevelopment agreement signed July 31, 1996, covered theimplementation of projects in several industrial sectorsincluding fisheries and aquaculture. This agreement wasdesigned to provide funding for federal and provincialdepartment and non-commercial Crown corporations tosupport economic development initiatives. In 1998–1999,the Department of Fisheries and Aquaculture received atotal of $1.6 million from this agreement to implement 42projects. The aquaculture sector received funding for anumber of initiatives including the development ofalternate shellfish and finfish species for culture in NewBrunswick coastal waters, the development of arcticcharr and rainbow trout broodstock for inland culture,fish health services, and research and developmentinitiatives relating to the ISA virus. The processing andmarketing sector received funds to support promotionalactivities, to develop value-added seafood products andnew packaging, and to further expand existing and newseafood initiatives.The Economic Development Fund (EDF) was a

4-year provincial funding program that came into effectApril 1, 1996 following the elimination of the sectoralagreements funded by the federal and provincialgovernments and the reduction of federal funding forcost-shared agreements. The purpose of the fund is tocontribute to high-priority development projects thatcannot be funded through departmental budgets orunder REDA. In 1998–1999, the Department of Fish-eries and Aquaculture was allocated $850,000 for

activities in the aquaculture and harvesting sectors.Each sector benefited from approximately 50% of theallocated budget. The aquaculture sector receivedfunding for its freshwater finfish and coastal shellfishdevelopment activities.The Strategic Development Fund (SDF) is another

provincial funding program that was initiated in 1994 bythe Department of Fisheries and Aquaculture. Theobjective of this program is to promote the implementa-tion of special and pre-commercial projects and toprovide the support essential to a sustainable, compe-titive and diversified fishing and aquaculture industry.The budget for 1998–1999 was $1.5 million. Aquacul-ture, processing and marketing, and harvesting initia-tives were funded under this program during the fiscalyear. The aquaculture sector received funding to support43 projects. They included a number of studies, diseaseinvestigation and monitoring activities, informationworkshops, development activities, new species devel-opment initiatives and industry missions to visit otheraquaculture facilities [22].Also on the east coast, the province of Nova Scotia

followed the typical pattern of large-scale promotion ofincreased aquacultural activity after 1984. The NovaScotia shellfish industry is composed of the harvesting offour primary species: blue mussels, sea scallops, Amer-ican oysters and European oysters. The industry isrelatively small, with net production valued at $5.1million in 2000, representing 10% of net sales ofaquacultural products in Nova Scotia.9 Total employ-ment in this sector is 155 full-time employees, 311seasonal workers, and 153 part-time workers.10

In 1996, the Government of Nova Scotia undertook amajor reorganization to consolidate and revise the lawsrespecting the fishing industry generally, with ramifica-tions on the shellfish industry. A comprehensive study,entitled The Nova Scotia Fisheries and Coastal Re-sources Act: Discussion Draft, served as the basis for thechanged statutes.Stemming from the discussion paper, Nova Scotia

passed the Fisheries and Coastal Resources Act. TheFCRA consolidated legislation concerning fisheries,aquaculture development, and sea plant harvesting fromnine separate acts into one.11 The act not onlyestablishes the site requirements, harvesting and

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7Canada, Office of the Commissioner for Aquaculture Development,

Review of Provincial and Territorial Services and Program (sic) in the

Aquaculture Sector, p. 3 online at http://ocad-bcda.gc.ca/Study%

204%20%20PDF%20Review%20of%20Prov%20P&S English.pdf.8Canada, Integrated Commercial Oyster Fishery Management Plan;

Eastern New Brunswick Area—Gulf Region Re 2110-2006 (Ottawa:

DFO, 2002) at URL http://www.glf.dfo-mpo.gc.ca/fm-gp/mgmt-[;an/

nb-nb/oyster huitre 2001 2006-e.html.

9Nova Scotia, Department of Agriculture and Fisheries, Statistics:

Aquaculture Production Sales of Market Sized Products, http://

www.gov.ns.ca/nsaf/aquaculture/stats/2000.htm.10Nova Scotia, Department of Agriculture and Fisheries, Statistics:

Aquaculture Employment Statistics for 2000, http://www.gov.ns.ca/

nsaf/aquaculture/stats/es00.htm.11Fisheries and Coastal Resource Act, Section 125 repealed the

following acts: Aquaculture Act, Fisheries Act, Fisheries Development

Act, Fishermen’s Associations Act, Irish Moss Act, Nova Scotia Fish

Inspection Act, Oyster Fisheries Act, Salt Fish Marketing Act, Sea

Plants Harvesting Act.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 177

handling requirements for the industry, but also activelypromotes shellfish farming as an industry subject togovernment subsidies. Regulations relative to the shell-fish industry include the Aquaculture Licence and Lease

Regulations, the Buyer’s Licensing and Enforcement

Regulations, the Fish Inspection Regulations, and theFisheries and Aquaculture Loan Regulations.Two programs in particular are of interest in that they

indicate the apparent willingness of the Nova Scotiagovernment to expand this industry. First, the Fisheriesand Aquaculture Loan Regulations specify that inter-ested and qualified parties may be eligible for assistancefor the purchasing of equipment for a start-up orcontinuing shellfish commercial enterprise. Second, inconjunction with Human Resource Development Cana-da, the Nova Scotia Department of Fisheries andAgriculture, developed a ten week classroom course topromote and teach prospective students how to establishand run a aquaculture business through the Nova ScotiaAgricultural College.12 Additionally, the Department ofFisheries and Agriculture lists 10 other possible sourcesfor financial assistance for those looking to get into, orexpand their shellfish operations.However, like other jurisdictions, legislation and

regulations concerning the mariculture industry stillremains smattered across other departments and agen-cies. The Assessment Act defines aquacultural propertyas ‘‘resource property’’, for taxation purposes. TheWilderness Protection Act, explicitly prohibits aqua-cultural activities in areas defined as a ‘‘wildernessarea’’, unless exempted by the Minister. The Environ-ment Act and its associated Activities DesignationRegulations and the Environmental Assessment Reg-ulations also govern activities relating to the shellfishindustry. The Activities Designation Regulations re-quire prospective shellfish farmers to obtain ministerialapproval before commencing with the development of acommercial enterprise that would use water or alter awater-course. The Environmental Assessment Regula-tions spell out when an environmental assessment (andsubsequent report) must be carried out, along withpublic consultations, and the criteria for a positiveenvironmental assessment. With respect to the shellfishindustry, an environmental assessment is not a manda-tory requirement; that is, no act directly specifies that ashellfish operation must have a positive environmentalassessment in order to be approved. However, a positiveassessment is one possible criterion used to determinethe issuance of an aquaculture lease.Finally, in Canada’s smallest province, Prince Edward

Island, there has been a long-established oyster fisheryon tidal rivers. In 2000, there were 909 contaminatedcommercial oyster license holders and 1077 commercial

license holders in the clean water fall fishery.13 1999landings were 3.2 million kg, valued at $6.9 million. PEIis very much an anomalous case in Canadian shellfishaquaculture, however, as its MOU agreement with thefederal government specifies that most aspects ofprovincial regulation will be administered by the federalgovernment under the terms of the federal regulatoryregime.

3.2. Procedural instruments

With respect to procedural instruments, their purposeis to affect the nature, number and activities of actors ina policy process in order to facilitate the attainment of agovernment’s policy goals. Very often this concernsactivities required to legitimate a government’s actionsand is accomplished by manipulating the links and nodesof the networks of actors involved in policy-making [23].Procedural policy instruments can be seen to range fromlimited information suppression or release designed tomildly affect network behaviour through ‘‘voluntaristic’’responses from targeted actors, to group or institutionalreforms designed to restructure existing networks bymore or less compulsory means [23]. In Canada, thereare two basic types of procedural instruments in mostpolicy sectors: those used to co-ordinate governments inCanada’s complex multi-level system of government andthose used to co-ordinate the actions of governmentsand relevant non-governmental actors.At the intergovernmental level, coordination of

aquaculture policy between the federal and provincialgovernments is handled by intergovernmental negotia-tion. To that end, after their discussion of aquaculture atthe First Ministers’ Conference in 1986, governmentspursued aquaculture policy issues through the CanadianCouncil of Fisheries Ministers, later renamed theCanadian Council of Fisheries and Aquaculture Minis-ters (CCFAM). CCFAM created the Aquaculture TaskGroup (ATG), to work on policy-related issues. Amongthe network management projects recently completed bythe ATG is the Canadian Action Plan for Aquaculture.It was envisaged as a mechanism that ‘‘would be ameans of organizing information, linking activities, becohesive and provide a measuring tool for achievementof objectives. The Plan would be high level and set thebroad pan-Canadian direction but be implemented byeach jurisdiction according to their specific circum-stances’’.14 The development of a national industry

ARTICLE IN PRESS

12See Nova Scotia Agricultural College, Aquaculture Centre,

http://www.nsac.ns.ca/pas/Aqua/aquaculture.htm.

13See Ottawa, Integrated Fisheries Management Plan: Oysters—

Prince Edward Island 2000–2004 (Inclusive) (Ottawa, DFO, 2000) at

URL http://www.glf.dfo-mpo.gc.ca/fm-gp/mgmt-plan/pei-ipe/oysters

huitres 2000 2004-e.html.14On this latter point and the role played by government agencies in

this process see [24]. Record of Decision, CCFAM Aquaculture Task

Group, Toronto, 2001, available online at http://www.aquaculture.ca/

English/CCFAM/CAIA RecordsOf10.html.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184178

organization, the Canadian Aquaculture Industry Alli-ance (CAIA), formed in 1995 and a member of theAlliance of Sector Councils, has complemented theseefforts at network management on the industry side.These traditional Canadian tools of federal–provin-

cial network management were accompanied by somerelatively minor departmental reorganization. Concernsabout the capture-fishery culture within DFO led to thecreation of the Office of the Commissioner for Aqua-culture Development (OCAD), intended to act as a‘‘champion’’ for the development of the industry. DFOresponded with its own reorganization, creating anOffice of Sustainable Aquaculture. Some evidence ofsubsystem spillover, once again from agriculture can beseen in the creation of the Canadian Food InspectionAgency in response to public concerns about food safetyand the cozy relationship between regulators and(terrestrial) farmers.Information instruments have been used sparingly at

the federal level, and, where they have been used, finfishaquaculture has been in the spotlight. Aquaculture wasthe object of an investigation by the Senate StandingCommittee on Fisheries, which took submissions, heldpublic hearings and published a report in June 2001.However, shellfish aquaculture occupied a relativelysmall proportion of the committee’s time. DFO had asimilar consultative process before issuing its Aqua-culture Policy Framework. Calls for a Royal Commis-sion, again directed largely at issues arising from finfishaquaculture, have fallen on deaf ears.At the provincial level, in British Columbia, while

issues of intergovernmental and interagency coordina-tion surfaced during the debate about how to expandclam culture in the early 1990s [24], it was not until 1998that the province launched its belated effort to expandthe industry by making additional areas available fortenure. The shellfish development initiative undertakenat that time revealed the drawbacks of the patchwork ofold regulatory rules and new financial initiatives andforced them onto the policy agenda. From the industrypoint of view, the tenure approval process was painfullyslow, with the NWPA/CEAA roadblock a particularsource of irritation. In the larger picture, the expansioninto new areas on the west and north coast ofVancouver Island and the mainland central and northcoast, brought many additional players and problems tothe table, involving First Nations’ claims, high costs,poor transportation links and processing infrastructure,and new water monitoring programs. The governmentwas found to be surprised not only by these events, butalso by the hostility of communities to the expansionand intensification of shellfish farming in areas whereleases had traditionally been concentrated.While MAFF is the designated lead agency for

shellfish aquaculture, the Ministry of SustainableResource Management (MSRM) is responsible for

coastal planning, the Ministry of Water, Land and AirProtection (WALP) is responsible for enforcement of anumber of key provincial regulation that affect aqua-culture, including the Waste Management Act, andLand and Water BC is responsible for tenure applica-tions. Interministerial coordination is handled at theoperational level by the Directors of AquacultureCommittee (DAC), which includes DFO representation.Other than these rather primitive efforts at network

management, the main procedural instrument has beenpublic involvement. Shellfish farmers must have thepermission of adjacent upland owners to carry on theiroperations on the foreshore and nearshore and may notblock an upland owner’s water access. However, theLand Act allows any individual to object to a tenureapplication, although the decision whether to hold ahearing and the final decision remain at the discretion ofthe Minister. Directive 99-10-01, which was intended tolay the procedural ground rules for the expansion oftenures, envisaged a more open participatory process ofcommunity consultation directed by Community Shell-fish Steering Committees. In the event, it provedimpossible to work with many of these committees, insome cases even impossible to strike them, and they werequietly dropped from the tenure expansion process.MSRM took over the public consultation, facilitatingintensive local planning focussed on shellfish for highinterest, high conflict areas and subsuming shellfish farmplanning into the larger framework of coastal planningelsewhere. The Baynes Sound Management Plan pro-vides an example of the former process, the NootkaCoastal Land Use Plan an example of the latter.On the east coast, the problems have been less severe

and various advisory and consultative initiatives havehad some success in coping with the problems caused byrapid expansion of the industry. The New BrunswickMinistry of Agriculture, Fisheries and Aquaculture isactively involved in promoting the industry but metinfrequently with organized aquaculture associationsand NGOs until recently. As part of the Bay of FundyShellfish Management Plan it was very active recentlyalong with the South-west Clam Resource Committeeand the New Brunswick Provincial Shellfish WorkingGroup in allocating licences and dealing with problemsin those areas [25].The most sophisticated efforts to use procedural

instruments to cope with existing and emerging pro-blems, however, have been in Nova Scotia. In an effortto facilitate economic development while simultaneouslyproviding information to local residents and determin-ing the level of public support, the government recentlyinitiated the concept of community-based review. TheNova Scotia Aquaculture Development Committee wasformed in November 1993 as a joint initiative by theNova Scotia Department of Agriculture and Fisheries(NSDAF) and the Nova Scotia Economic Renewal

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 179

Agency to combine the overall capabilities of anygovernment agencies that could contribute to thepromotion and development of Aquaculture in NovaScotia.The committee is chaired by NSDAF and consists of

members representing a diverse mix of governmentdepartments and agencies who have regulatory, devel-opment, research and potential funding involvementsregarding aquaculture. The committee provides avehicle for enhanced, efficient communication andeliminates duplication of effort on aquaculture issuesand projects that involve more than one agency. It alsoserves to inform agency members of respectivecurrent involvements with aquaculture to increaseoverall awareness and dissemination of aquaculturerelated information and activities. Agencies currentlyrepresented on the N.S.A.D.C. are: N.S. Departmentof Agriculture and Fisheries, Department ofFisheries and Oceans, National Research Council(IRAP), N.S. Department of Economic Development,Canadian Coast Guard, Human Resource Develop-ment Canada, Federal Business Development BankCanada, ACOA, Sustainable Economic Development,Industry Canada, Environment Canada, Farm CreditCorporation, Aquaculture Association of N.S. Enter-prise Cape Breton, and the National Research Council(IMB).The committee is serviced by technical subcommittees

composed of qualified experts from federal and provin-cial agencies or appropriate industry associations. Thecommittees review Aquaculture applications, F.L.B.loan requests and agency funding proposals from atechnical and financial perspective and report resultsthrough the N.S.A.D.C. to the appropriate agency.Federal/provincial co-op agreement projects are alsoreviewed through these committees. In addition thecommittees provide advice, comments, and recommen-dations on major issues, potential policy, programmingand future research efforts from various sources whenrequested.There are currently three subcommittees operating

under the aegis of the N.S.A.D.C. All have developedterms of reference and criteria that govern their reviewfunction. The Shellfish and Salmonid finfish technicalsubcommittees meet on all issues and applicationsregarding traditional aquaculture species including newgrowout ones, U-fish operations hatcheries and intro-duction and transfer issues regarding new species. TheExperimental Marine Finfish subcommittee was formedmost recently to deal with growing interest andpreliminary development issues of hatchery and growout culture of marine whitefish species, striped bass andeels. Culture of traditional highly valued species such ashalibut, haddock, and flounder are at or near commer-cial development in Europe and offer significantpotential for N.S. over the long term. The immediate

mandate of this subcommittee is to provide orderlyguidance during the critical early development stages ofthis type of aquaculture. The technical subcommitteesalso consider any potentially new or existing technolo-gies or techniques that may benefit industry in thefuture. Examples would include enhanced triploid(breeding) techniques, cryopreservation of shellfishlarvae, broodstock development, fish health, diseasecontrol, carrying capacity and planning for currentlyactive areas. Funding agency representatives sit on alltechnical committees and provide assessment and inputregarding business aspects of aquaculture applicationsin addition to providing review of any major researchproposals and loan requests submitted. The N.S.A.D.C.currently meets quarterly or as required. The committeehas overseen review of approximately 160 applicationsand 40 proposals over the past 3 years as part of routinebusiness.In addition, the committee has and will continue to

identify and address fundamental weaknesses in theexisting infrastructure vital to substantial growth anddevelopment of the aquaculture industry in NovaScotia. Specific efforts have been undertaken by thecommittee to investigate major issues by meeting withoutside groups to solicit advice and information. Meet-ings have been held with chartered bank representativesto review and discuss past problems and potentialsolutions regarding sources of working capital fromprivate sector sources. A key government representativefrom New Brunswick (N.B.) was invited to present thestrategy that has resulted in the successful industry inN.B., and how elements of this strategy could be utilizedto assist the industry in N.S. The committee has also metat the N.S. Agricultural College and Department ofAgriculture and Fisheries to tour the facilities anddiscuss the expertise and capabilities that may be appliedto Aquaculture development.The committee has met with representatives of

A.C.O.A., Cape Breton and toured one of the majorintegrated salmon and trout producing facilities in thearea to better understand the problems and potentialopportunities present in that substantial segment of theaquaculture industry. When required, the committee haspreviously examined major initiatives supported andpromoted by community level based organizations inRichmond and Digby counties to assist and facilitateachievement of their objectives regarding aquaculture,and stands ready to assist other areas if the needarises [26].Regional aquaculture advisory committees have also

been created recently and have been given greaterpowers as to who is awarded licenses. RegionalAquaculture Development Advisory Committees(RADACs) began with a pilot project in the Wedgeportand Pubnico area. The strategy behind such anapproach was to obtain a vehicle whereby the developer

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184180

and the community come to an agreement on the bestway to proceed. The result of this process is then passedon to the Minister of Fisheries and Aquaculture as arecommendation. The RADACs are composed ofpeople who represent the interests of the area. Thismay include fishermen, aquaculturists, recreationalboaters, waterfront landowners, business operatorsand local politicians—in short, people and groupsaffected by the installation of an Aquaculture site.Currently there are RADACs in operation inDigby/Annapolis, Wedgeport, Pubnico, Shelburne,Mahone Bay, the Eastern Shore, Guysborough, IsleMadame, Tatamagouche and East Street MargaretsBay. The government hopes that most areas withsignificant potential for aquaculture development willform community RADACs. Areas not covered by aRADAC will have input through public hearingprocesses [27].Also on the Atlantic coast, in PEI the Prince Edward

Island Shellfish Advisory Committee15 deals with manyaspects of the oyster fishery. Chaired by DFO, it onlymeets as issues come up which need industry feedback.It is composed of representatives from commercialoyster fishermen, DFO research management conserva-tion and protection and science branch, provincialfisheries and members of aboriginal communities. Threekey advisory committees also operate in this sector. Thefirst is the Sea Duck Mussel Aquaculture WorkingGroup created in the mid-1990s. This Committeeexamines the issue of interaction of sea ducks andmussel sites. Outcomes can be research, technologydevelopment and communications. It involves partici-pants from the federal and provincial government andindustry. A second is the Shellfish Classification Work-ing Group. This group involves federal, provincial andindustry representatives and examines and makesrecommendations on water quality issues—particularlybacterial contamination in shellfish areas that may resultin shellfish closures. This group has been in existence formore than 10 years.A PEI Aquaculture Committee was also recently

established. It is made up of high-level (Deputy-Ministerand Regional Director) federal, provincial and industryrepresentatives. This committee examines constraintsand opportunities in relation to aquaculture. In terms ofDFO locally there are two important committees, theAquaculture Lease Management Board and the LeaseReferral Committee that give advice to DFO on mattersrelating to aquaculture leasing.16

4. Conclusion: not-so-smart regulation?

As this overview has shown, Canada’s aquacultureimplementation style is one which involves the use ofregulation and, more recently, subsidies of all kinds,coupled with the creation of industry advisory groups tointeract with government regulators.As in many other natural resource sectors, the

preferred substantive instrument in this area hashistorically been regulation [28]. However, this wasaugmented beginning in 1984 with extensive use ofanother category of substantive instrument, financialincentives. This has also been accompanied with somemoves towards industry self-regulation through volun-tary codes of conduct although this last is veryproblematic and has not proceeded very far [29].As is also fairly typical of Canadian resource policy,

the use of industry advisory committees is the pre-dominant procedural technique of governance in thissector. It goes hand in hand with the traditionalregulatory tools used for substantive purposes.This regime of aquaculture policy development and

implementation in Canada over the past two decadeshas faced two major problems. Substantively, there areclear objectives in most provinces, where promotion ofthe industry as an engine of regional economic growthwith policy leadership and financial incentives located inAgriculture and Fisheries departments with closeindustry contacts is typical. Within provincial jurisdic-tions, the main problem in shellfish policy, substan-tively, is how to implement environmental, economicand socially sustainable aquaculture within the contextof a relatively new and technologically sophisticatedindustry dominated by small- and medium-sized en-terprises (SMEs); rather than in a mature or decliningsector characterized by a few large companies with along history of interaction with government regulators.The current method preferred by regulators to deal withthis is a combination of the carrot and the stick, or a mixof financial subsidies for expansion coupled withregulations to meet a variety of food, environmental,and licensing standards.However, this approach is quite difficult in the

context of an industry dominated by SMEs for anumber of reasons. First, with respect to the use ofregulatory instruments, it places a heavy reliance on theexpectation that industry will respond rationally to theinformation provided about government goals and aims.However, it is difficult to communicate with SMEs andthey may not be in a position to respond even if theyhear the message. Secondly, with respect to incentivesand assistance of various kinds, it calls for thedevelopment of industry–government partnerships espe-cially in areas like education and training. HoweverSMEs are usually too small for partnerships so thearrangements have to be through the industry

ARTICLE IN PRESS

15See Ottawa, Integrated Fisheries Management Plan: Oysters—

Prince Edward Island 2000–2004 (inclusive) (Ottawa, DFO, 2000) at

URL http://www.glf.dfo-mpo.gc.ca/fm-gp/mgmt-plan/pei-ipe/oysters

huitres 2000 2004-e.html.16 Interviews with provincial aquaculture officials.

M. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 181

association, which is often itself poorly organized withweak coverage of the industry. And, while incentivesought to work as well or better with SMEs, than withlarger companies, they often do not in part becausethere are fewer opportunities for cost savings in smalloperations [30].

Procedurally, policy-makers have had to address thevertical integration issues between levels of government.At the federal level, problems were caused by mixing old‘‘command and control’’ statues like the Fisheries Actand the Migratory Birds Act with ‘‘governance’’legislation like the Oceans Act. Similarly, intergovern-mentalism carried on through the CCFM AquacultureGroup has been combined with various formal andinformal mechanisms created within each province, suchas the MOU with DFO, working groups like theDirectors of Aquaculture Committee in BC or the NovaScotia Aquaculture Development Committee, andadvisory groups such as the more recent RegionalAquaculture Development Advisory Committees, alsoin Nova Scotia.However, policy-making in this sector remains com-

plex as there are conflicting policy objectives includingprotection of habitat for wild fisheries and generallyprotection of traditional clients in capture fisheriesversus aquaculture development, as well as a host ofnew actors and interests—such as First Nations andenvironmentalists—who have been brought into thepicture as the industry has expanded both extensivelyand intensively. These kinds of problems are not reallyresolved by the use of traditional procedural instrumentssuch as the creation of OCAD or the use of industryadvisory committees, as the main problem is linked tolegitimizing the recent development initiatives througheffective consultations with local populaces, includingproperty owners, non-aquaculture commercial opera-tions, and First Nations.Although the move to create local bodies such as

RADECs in Nova Scotia may be a move in the rightdirection, both in shellfish and finfish aquacultureconsultations in this sector take a number of forms.Some are mandated as part of local planning processes[31], others are instituted by provincial governments aspart of environmental assessments and resource devel-opment processes [32]. Still others are components oflarger strategies dealing with overall coastal resourceand ecological planning such as Canada’s OceanStrategy [33].To a great extent, the success of further, continued,

aquacultural development will depend on the ability ofgovernments to further the associational activitiesand capacity of the small and medium sized companiesin the sector as well as upon the planning andparticipatory consultation exercises required to gainlocal, regional, provincial and national support forenhanced aquacultural activities. They have thus be-

come ‘critical consultations’ in the sense thattheir outcomes are critical determinants of licensingand other provisions surrounding aquacultural opera-tions [34].BC is a typical example in Canada as the desired goal

of government is rapid, non-paradigmatic change—doubling of tenure areas, and more than doublingindustry size over the next decade. This has involved finetuning the existing policies, and better coordinationbetween different levels of government but has alsointroduced new actors, particular First Nations andlarger investors. But the existing implementation stylehas encountered many difficulties, bringing in NGO’s asan unwanted collateral effect and encountering specialproblem dealing with SMEs and First Nations land andtreaty rights and titles.This leads to the conclusion that the existing policy

mix is not well designed to handle aquaculture develop-ment initiatives [35]. Although there are some examplesin other sectors of how to proceed [36], including policytechniques used in other areas in BC [37], much ofCanada’s policy framework suffers from what ChrisAllen has called ‘‘na.ıve managerialism’’ which is flawed‘‘because it cannot get around the fact that policyimplementation inevitably involves a process of negotia-tion and compromise between actors in the policy-implementation network’’ [38].Several issues and factors face Canadian aquaculture

regulators over the long term. These include internatio-nalization, as the industry is potentially vulnerable dueto its export orientation (80%); environmental ‘‘crises’’as the industry reaches the limits of accessible andproductive sites—possibility of disease outbreaks, pro-blems with benthic balances—leading to an intensifica-tion of the reframing of these debates in less technicalterms towards health scares, ‘‘favourite place’’ cam-paigns, and conflicts with tourism; as well as a variety ofeconomic adjustment issues. These latter include ‘‘thenew resource economy’’ issues such as the transitionfrom capture or wild fisheries to agri-business models—involving the intensification of culture, application ofscience and technology including genetics; increasinglycapital intensivity and consolidation of the industry anda split in public acceptance: strong opposition in areasalready developing a retirement/recreation/rural homebusiness economy and strong support from remotercommunities with fewer alternative options to resourceextraction.As the linkages develop between processes specifically

related to aquaculture and those related to largerfisheries, marine and ocean strategies, the potential forenhanced aquacultural activities in Canada is tiedincreasingly closely to the perceived legitimacy andeffectiveness of these larger processes. Hence the successof communication and consultation strategies inlarge-scale planning exercises will be an increasingly

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184182

important determinant of the success of aquaculturaldevelopment initiatives.In order to deal effectively with these issues, it is

necessary for Canadian policy-makers and administra-tors to ‘‘smarten up’’ their regulatory regimes and addto the toolbox of instruments used in the sector.Canadian governments should give more thought tothe use of ‘‘smarter’’, next generation substantiveinstruments—such as streamlining regulation, self-reg-ulation, auditing, certification and management ac-countability—and investigate the use of co-ops andmarketing boards and advertising campaigns to helpconsolidate the industry and build its policy capacity aswell as its industrial output. Canadian governmentsshould also devote a lot more attention to the use ofprocedural instruments beyond ‘‘authoritative’’ onessuch as industry advisory committees. These shouldinclude using other resources such as financial supportfor interest groups (community, industry, first nation,environmental NGOs); the use of information resourcesto promote scientific and stakeholder networking, andthe use of organizational resources such as (legislative aswell as administrative) commissions and inquiries topromote knowledge transfer and networking; in addi-tion to developing better consultative mechanisms andstrategies. Canadian governments must specificallyaddress the issue of instrument mixes and attempt toconsciously design an optimal governance strategy;specifically by drawing on lessons from other jurisdic-tions—such as Hawaii, EU, US, Australia and others—with experience in the sector.

References

[1] Hume S. We are going to stop these fish farms: Omega Salmon’s

hatchery at Ocean Falls has become a lightning rod for B.C.’s

growing aboriginal rebellion. Vancouver Sun 2003;1 Mar:A21;

Simpson S. Fishery officials license illegal catch. Vancouver Sun

2003;7 Feb:D3;

Rud J. Fish farm advisor an aquaculture supplier, NDP’s

MacPhail says. Vancouver Sun 2003;13 Feb:A19;

Simpson S. Shellfish farms disrupt; beaches. Vancouver Sun

2003;10 Jan:F1;

Hume S. Lessons not learned in Ireland Sea trout supported a

thriving business—until sea lice wiped them out. Vancouver Sun,

2003;22 Feb:A4;

McInnes C, LaVoie J. Van Dongen Embroiled in Row Over Fish

Farm, Papers Show. Vancouver Sun 2003;5 Feb:A3.

[2] Randolph J, Bauer M. Improving environmental decision-making

through collaborative methods. Policy Studies Review 1999;

16(3/4):168–91.

[3] Gunningham N, Grabosky P, Sinclair D. Smart re-

gulation: designing environmental policy. Oxford: Clarendon

Press; 1998.

[4] Cook D. Consultation, for a change? Engaging users and

communities in the policy process. Social Policy, Administration.

2002;36(5):516–31;

Wondelleck JM, Manring NJ, Cowfoot JE. Teetering at the top of

the ladder: the experience of citizen group participants in

alternative dispute resolution processes. Sociological Perspectives

1996;39(2):249–62.

[5] Suryanata K, Umemoto KN. Tension at the nexus of the

global and the local: culture, property and marine aqua-

culture in Hawaii. Environment and Planning A 2003;35(2):

199–213.

[6] Rhodes RAW. The new governance: governing without govern-

ment. Political Studies 1996;44:652–67;

Rhodes RAW. From marketisation to diplomacy: it’s the mix that

matters. Australian Journal of Public Administration 1997;

56(2):40–54.

[7] Gibson RB, editor. Voluntary initiatives: the new politics of

corporate greening. Peterborough: Broadview Press; 1999.

[8] Salamon LM, Lund MS. The tools approach: basic analytics. In:

Salamon LS, editor. Beyond privatization: the tools of govern-

ment action, Washington DC. Urban Institute: 1989. p. 23–50;

Salamon LM, editor. The tools of government: a guide to the new

governance. New York: Oxford University Press; 2002;

Lowi TJ. The state in politics: the relation between policy and

administration. In: Noll RG, editor. Regulatory policy and the

social sciences. Berkeley: University of California Press: 1985;

67–105;

Bemelmans-Videc ML, Rist RC, Evert V, editor. Carrots, sticks

and sermons: policy instruments and their evaluation. New

Brunswick: Transaction Publishers: 1998;

Peters BG, Van Nispen FKM, editors. Public policy instruments:

evaluating the tools of public administration. New York: Edward

Elgar: 1998.

[9] Lasswell. Politics: who gets what, when, how. New York:

Meridian 1958. p. 204.

[10] French JRP, Raven B. The bases of social power. In: Cartwright

D, editor. Studies in social power. Ann Arbor: The University of

Michigan Press; 1959. p. 150–67.

[11] Hood C. The tools of government. Chatham: Chatham House

Publishers; 1986.

[12] Lundquist, L. Implementation steering: an actor-structure

approach. Bickley: Chartwell-Bratt: 1987;

Anderson, CW. Statecraft: an introduction to political choice and

judgement. New York: Wiley: 1977;

Baldwin DA. Economic statecraft. Princeton, NJ: Princeton

University Press: 1985.

[13] Howlett M. Managing the hollow state: procedural policy

instruments and modern governance. Canadian Public Adminis-

tration 2000;43(4):412–31;

Rothmayr C, Serduelt U, Maurer E. Policy instruments: an

analytical category revised. Bern: Paper Presented at the ECPR

Joint Sessions of Workshops, 27th February–March 4, 1997;

Timmermans A et al. The design of policy instruments:

perspectives and concepts. Chicago: Midwest Political Science

Association; 1998.

[14] Gunningham N, Sinclair D. Regulatory pluralism: designing

policy mixes for environmental protection. Law and Policy.

1999;21(1):49–76;

Harter PJ, Eads GC. Policy instruments, institutions and

objectives: an analytical framework for assessing alternatives to

regulation. Administrative Law Review 1985;37:221–58;

Grabosky P. Counterproductive Regulation. International Jour-

nal of the Sociology of Law 1995;23: 347–69;

Sterner T. Policy instruments for environmental and natural

resource management. Washington, DC: Resource for the Future

Press: 2003.

[15] Gunningham N, Young MD. Toward optimal environmental

policy: the case of biodiversity conservation. Ecology Law

Quarterly 1997;24:243–98;

Sinclair D. Self-regulation versus command and control? beyond

false dichotomies. Law and Policy 1997;19(4):529–59.

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184 183

[16] Linder SH, Peters BG. The logic of public policy design: linking

policy actors and plausible instruments. Knowledge in Society

1991;4:125–51.

[17] Grabosky PN. Green markets: environmental regulation by the

private sector. Law and Policy 1994;16(4):419–48;

Gunningham N, Young MD. Toward optimal environmental

policy: the case of biodiversity conservation. Ecology Law

Quarterly 1997;24:243–98.

[18] Gunningham N, Grabosky P, Sinclair D. Smart regulation:

designing environmental policy. Oxford: Clarendon Press; 1998.

p. 10.

[19] Gunningham N, Sinclair D. Leaders and laggards: next genera-

tion environmental regulation. Sheffield: Greenleaf Publishing;

2002.

[20] British Columbia, Ministry of Agriculture and Fisheries, Aqua-

culture Legislation in British Columbia: a comparative legal

analysis. Aquaculture Industry Development Report 91-01,

Victoria, 1991;19–21.

[21] Maurice M, Foster ME, Chiasson PY. The economic value of

marine-related resources in New Brunswick (Fredericton: New

Brunswick Department of Fisheries and Aquaculture and DFO;

May 2000.

[22] Fisheries and aquaculture New Brunswick. Annual Report 1998–

1999; Fredericton: Communications New Brunswick, 1999.

[23] Klijn EH. Analyzing and managing policy processes in complex

networks: a theoretical examination of the concept policy network

and its problems. Administration and Society 1996;28(1):90–119;

de Bruijn JA, ten Heuvelhof EF. Policy networks and governance.

In: Weimer DL, editor. Institutional design, Boston: Kluwer

Academic Publishers: 1995. pp. 161–79;

de Bruijn JA, ten Heuvelhof EF. Instruments for network

management. In: Kickert WJM, Klijn E-H, Koppenjan JFM,

editors. Managing complex networks: strategies for the public

sector. London: Sage: 1997. pp. 119–36.

[24] British Columbia, Ministry of Agriculture and Fisheries, Proceed-

ings of the 1990 Manila Clam Workshop. Aquaculture Industry

Development Report, 90-09, Victoria, 1990. p. 2–3.

[25] New Brunswick Ministry of Agriculture, Fisheries and Aqua-

culture, Annual Report 2001–2002, Fredericton, N.B. Ministry of

Agriculture, Fisheries and Aquaculture, 2002.

[26] http://www.gov.ns.ca/nsaf/aquaculture/nsadc/index.htm.

[27] http://www.gov.ns.ca/nsaf/aquaculture/radac/index.htm.

[28] Bohm P, Russell CS. Comparative analysis of alternative policy

instruments. In: Kneese AV, Sweeney JL, editors. Handbook of

natural resource and energy economics, vol. I. Dordrecht:

Elsevier: 1985.

[29] Gunningham N, Rees J. Industry self-regulation: an institutional

perspective. Law and Policy 1997;19(4):363–414;

Grabosky PN. Using non-governmental resources to foster

regulatory compliance. Governance 1995;8(4):527–50;

Grabosky PN. Regulation by reward: on the use of incentives as

regulatory instruments. Law and Policy 1995;17(3):257–82.

[30] Gunningham N, Sinclair D. Leaders and laggards: next genera-

tion environmental regulation. Sheffield: Greenleaf Publishing;

2002.

[31] Alshuwaikhat HM, Nkwenti DI. Visualizing decisionmaking:

perspectives on collaborative and participative approach to

sustainable urban planning and management. Environment and

Planning B: Planning and Design 2002;29:513–31.

[32] Burton TL. A review and analysis of Canadian cases in public

participation. In: Sadler B, editor. Involvement and Environment:

Proceedings of the Canadian Conference on Public Participation,

Edmonton: Environment Council of Alberta: 1978;

Bruton J, Michael H. Differences of opinion: round tables, policy

networks and the failure of Canadian environmental strategy.

Alternatives 1992;19(1):25;

Palerm JR. An empirical–theoretical analysis framework for

public participation in environmental impact assessment. Journal

of Environmental Planning and Management 2000;43(5):581–600;

British Columbia. Baynes sound shellfish aquaculture action

plan—draft. Victoria: Ministry of Sustainable Resource Manage-

ment, Resource Management Division: 2002.

[33] Canada. Canada’s oceans strategy: our oceans, our future—policy

and operational framework for integrated management of

estuarine, coastal and marine environments in Canada. Ottawa:

Ministry of Fisheries and Oceans: 2002;

Canada. Canada’s oceans strategy: our oceans, our future.

Ottawa: Ministry of Fisheries and Oceans: undated.

[34] Suryanata K, Umemoto KN. Tension at the nexus of the global

and the local: culture, property and marine aquaculture in Hawai.

Environment and Planning A 2003;35(2):199–213;

Gunningham N, Sinclair D. Leaders and laggards: next genera-

tion environmental regulation. Sheffield: Greenleaf Publishing:

2002.

[35] Yandle T. The challenge of building successful stakeholder

organizations: New Zealand’s experience in developing a fisheries

co-management regime. Marine Policy 2003;27(2):179–92.

[36] Tang H et al. Building local program evaluation capacity toward

a comprehensive evaluation. In: Mohan R, Bernstein DJ, Whitsett

MD, editors. Responding to sponsors and stakeholders in

complex evaluation environments. New Directions for Evaluation

2002;95:39–56;

Hogl K. Patterns of multi-level co-ordination for NFP-processes:

learning from problems and success stories of European policy-

making. Forest Policy and Economics 2002;4:301–12;

Bryson JM, Cunningham GI, Lakkemoe KJ. What to do when

stakeholders matter: the case of problem formulation for the

African American men project of Hennepin County, Minnesota.

Public Administration Review 2002;62(5):568–84;

Leach WD, Pelkey NW, Sabatier PA. Stakeholder partnerships as

collaborative policymaking: evaluation criteria applied to wa-

tershed management in California and Washington. Journal of

Policy Analysis and Management 2002;21(4):645–670;

Vigoda E. From responsiveness to collaboration: governance,

citizens, and the next generation of public administration. Public

Administration Review 2002;62(5):527–40.

[37] Mason M. Evaluating participative capacity-building in

environmental policy: provincial fish protection and parks

management in British Columbia, Canada. Policy Studies 2000;

21(2):77–98.

[38] Allen C. They just don’t live and breathe the policy like we do:

policy intentions and practice dilemmas in modern social policy

and implementation networks. Policy Studies 2001;22(3/4):149–66

at p. 164.

ARTICLE IN PRESSM. Howlett, J. Rayner / Marine Policy 28 (2004) 171–184184