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A discussion of the legitimacy of government, such as that undertaken by the Centre for Public Impact (CPI), is daunting because legitimacy goes to the heart of societies that are founded on democracy and the rule of law.
The four constituent parts of government legitimacy cited in the CPI discussion paper, namely trust, fairness, values and democracy, are compelling yet also complex and abstract. Insights into how legitimacy may be pursued and how it may affect public impact can be gained by considering practical examples of government decision-making, such as the regulatory review of large resource and infrastructure projects.
Striking a balance
The planning and development of new mines, energy generation and transmission projects, or large transport infrastructure bring into play an array of competing public policy objectives, perspectives and interests at the local, regional, national, and even global levels. Projects create jobs and growth.
For Canada, the resource economy - directly and indirectly - represents close to one-fifth of GDP. Projects also impact the environment. They affect communities and, in the Canadian context, the rights of indigenous peoples. The environmental and regulatory reviews engage different authorities and levels of government, including indigenous governments.
How governments consider all the relevant factors, engage with interested parties and communities, and ultimately decide on whether and under what conditions projects may move forward will have public impact: as regards the individual project, the economy and the environment, and on the relationship between government and citizens. If done well, the project reviews and the subsequent regulatory oversight may enhance legitimacy as defined by the CPI, namely the “reservoir of support that allows governments to deliver positive outcomes for people”.
Of course, this is easier said than done. There are, typically, competing perspectives, interests and rights. No decision-making process or individual decision will be universally applauded. The exercise is finely balanced. We submit, though, that there are three key conditions for the successful review, decision-making, and (if applicable) implementation of a large project.
Firstly, an objective and reasonably complete database of facts and analyses must be assembled and made broadly available, including indigenous or traditional knowledge. This may be facilitated by an independent (and transparent) authority - for example, an independent regulator.
Secondly, there must be an opportunity for meaningful input and participation in a review process (and possibly in the project and its subsequent oversight) by affected parties and communities. Again, this may be led by an independent authority, e.g., the regulator or a separately constituted review panel.
And thirdly, the final arbitrage among competing perspectives and interests, as well as the decision-making process on project go/no-go, must be guided by the “public interest” and not be captive of any constituency. This must be done by an authority accountable to the public, i.e., the government with ultimate jurisdiction - legitimacy in its legal sense - over the project. In some instances, and under certain conditions, the decision may be delegated to another authority that is well placed to secure the confidence and trust of the public.
Again, this is simply stated yet remarkably difficult to calibrate and deliver responsibly in the real world.
It's good to talk
The Speech from the Throne in the Canadian parliament on 4 December 2015 reflected the intent of the incoming government of Prime Minister Justin Trudeau to rebalance the process of environmental and regulatory reviews and to promote a clean environment and a strong economy. “And as part of efforts to restore public trust, the Government will introduce new environmental assessment processes. Public input will be sought and considered. Environmental impacts will be understood and minimised. Decisions will be informed by scientific evidence. And indigenous peoples will be more fully engaged in reviewing and monitoring major resource development projects.”
To follow through on its commitments, the government mandated panels of experts and parliamentary committees to review different parts of the federal environmental and regulatory processes, including: the environmental assessment process; the structure, role and mandate of the National Energy Board; and the Fisheries Act and Navigation Protection Act. The panels and committees have since conducted their analyses and consultations and they have reported findings and recommendations to the government.
The government considered this input and, in June 2017, issued a discussion paper proposing legislative and other reforms to “regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with indigenous peoples, ensure good projects go ahead, and resources get to market”.
The discussion is ongoing. It is beyond the scope and intent of this article to describe in any detail the range of reforms that are contemplated and how they may be expected to contribute to enhancing the real and perceived legitimacy of decision-making over time. Clearly, attention has been given to the three critical parts of the process: the evidence base; engagement; and the decision-making. “Impact assessments” and not merely environmental assessments will inform decisions.
Rigour and transparency will be applied to the science, data and evidence, including indigenous knowledge. The analysis will be situated within a wider framework, as shaped by national strategies, regional environmental assessments, and consideration of cumulative effects of development. This will include alignment with the Pan-Canadian Framework on Clean Growth and Climate Change, which was adopted in December 2016 by the Canadian government, eight of the ten provinces, and the three territories.
There will be opportunities for inclusive and meaningful participation of interested parties and partnerships with indigenous peoples. Roles are allocated among the Canadian Environmental Assessment Agency and sector regulators (e.g., the National Energy Board and the offshore petroleum boards), based on expertise. Critically, “decision-making [will be] retained by Minister(s) or Cabinet based on whether projects are in the public interest, to ensure accountable government”.
Moreover, the paper proposes maintaining legislated timelines for project reviews - with scope for some exceptions - to provide predictability of process. Cooperation agreements with interested jurisdictions (provinces, territories, indigenous) will also be pursued to advance and support an objective of “one project - one assessment”, while respecting jurisdiction.
The discussion paper underscores the principle that engagement with affected parties and communities, including indigenous peoples, must continue throughout the lifecycle of a large project, from early planning (including design of the review process) to monitoring, compliance and enforcement.
Legitimacy: an ongoing relationship
Clearly, legitimacy is not a one-off outcome; it is an ongoing relationship. The discussion paper sets out a framework. The discussion will proceed initially on whether the government has struck the right balance in its design of the model. Once new legislation, regulations, institutions and processes are implemented, the effectiveness of the model will be tested over time, in project after project, to determine whether its objectives are met, including whether good projects are built and Canadian resources get to market.
No process or outcome will meet the expectations of all parties. It is to be hoped that an inclusive and rigorous process will help achieve positive impact while securing public trust in institutions and government.
What is legitimacy to you? Where do you see legitimacy working well? How governments work with citizens to build legitimacy is a big question for CPI.
Find out how to get involved in our Finding Legitimacy project
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