Guidelines for Effective Regulatory Consultations

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You can use it for research or reference. Consult our Cabinet Directive on Regulations: Policies, guidance and tools web page for the policy instruments and guidance in effect.

Purpose

These guidelines are issued to advise managers and functional specialists on interpretation of the requirements of the Cabinet Directive on Streamlining Regulation regarding regulatory consultation and to provide tools to support effective consultations throughout the regulatory life cycle.

Context

Consulting, Coordinating, Cooperating

Federal regulatory activity is governed by the Cabinet Directive on Streamlining Regulation, which requires that interested and affected parties be consulted on the development or amendment of regulations, the implementation of regulatory programs, and the evaluation of regulatory activity against stated objectives. Government departments and agencies must therefore make systematic efforts to ensure that interested and affected parties have the opportunity to take part in open, meaningful, and balanced consultations at all stages of the regulatory process, that is, development, implementation, evaluation, and review.

Although this guide focusses on regulatory consultation, consultation with interested and affected parties should begin long before the decision to proceed with a regulatory approach is taken. Consultations should be woven into all aspects of policy development, including the discussions as to which instrument (i.e. legislation, regulations, voluntary mechanisms, guidelines, or policy) would best meet the public policy objectives.

The process for developing and approving regulations is subject to the Cabinet Directive on Streamlining Regulation

www.regulation.gc.ca

Additional guidance is available at:

Cabinet Directive on Law-Making

Regulatory Consultations

The extent to which stakeholders are involved in a consultation process varies considerably, from simply providing them with information to engaging them in a true partnership with shared decision making. Regulatory consultations tend to fall somewhere in the middle of this continuum, since the final decision regarding regulation rests with a specific individual (i.e. the Minister) or body (i.e. the Governor in Council). These Guidelines focus primarily on the consultation process, which entails a two-way exchange in which stakeholders are given an opportunity to provide input and affect the outcome of a regulatory proposal. A good consultation process assists in developing quality regulations and mitigates implementation risks.

There is no one-size-fits-all approach to regulatory consultations. The size and scope of the consultative process depend on the proposed regulations and the number of people or groups affected by them. Regulations may be broad in scope and affect all Canadians (e.g. Canada Pension Plan Regulations), may affect a large stakeholder group (e.g. Canadian Aviation Regulations), or may affect relatively few individuals (e.g. Oaths of Office Regulations). The process, therefore, may be broad (e.g. many stakeholders, across several regions) or more targeted (e.g. specific stakeholders, specific regions).

When a department determines that regulation is the best tool for achieving the government's objectives, it launches a process of planning and public consultation. It then writes its regulatory proposal and a regulatory impact analysis statement (RIAS). The RIAS is a public accounting of how the regulatory proposal has followed each element of the Cabinet Directive on Streamlining Regulation, including information on the consultations that have taken place to date (who was consulted, their views, and how their comments were addressed, among other things) and a summary of the expected impact of the proposed regulations.

The RIAS is itself a consultation tool, in that it is pre-published in the Canada Gazette, Part I (http://www.gazette.gc.ca/index-eng.html). It should be comprehensive and written in simple, clear, concise language that the general public can easily understand.

Departmental officials are required to submit a draft of the RIAS to the Regulatory Affairs Sector of the Treasury Board of Canada Secretariat (the Secretariat) to obtain feedback on the regulatory proposal, confirm consistency with the Cabinet Directive on Streamlining Regulation, and ensure that it is clear, complete, and understandable to those who will be affected by the regulations.

Unless otherwise specified, draft regulations must be approved by the appropriate Cabinet committee (currently the Treasury Board) before they are pre-published in the Canada Gazette, Part 1. Pre-publication is intended to provide a final opportunity to obtain comments on the proposed regulations, determine whether any stakeholders were missed in the consultative process, and examine the extent to which the proposal is in keeping with the original consultations.

When draft regulations are pre-published, interested and affected parties are allowed a period of time–usually 30 days–to express their views. The pre-publication comment period may also be determined by international agreements, such as World Trade Organization agreements and the North American Free Trade Agreement. The Cabinet Directive on Streamlining Regulation requires a comment period of a minimum of 75 days for regulations with a potential impact on international trade.

In some (limited) circumstances, an exemption from pre-publication may be granted. For regulations made or approved by the Governor in Council, exemptions may be granted by the designated Cabinet committee on a case-by-case basis. Secretariat analysts can provide advice on the appropriateness of an exemption from pre-publication if they are engaged early in the regulatory development process.

Consulting with Aboriginal groups involves special considerations. A fiduciary relationship arising out of their historic relationship exists between the Government of Canada and Aboriginal peoples. Departments and agencies are to work with First Nations, Inuit, and Métis communities and peoples; national, regional, and local Aboriginal organizations; and Aboriginal governments and ensure that they meet all obligations that may exist in relation to rights protected by section 35 of the Constitution Act, 1982.

Officials must ensure that regulatory consultations are consistent with all relevant statutes related to the proposed regulations. All regulatory consultations must be consistent with the Official Languages Act.

Components of Effective Regulatory Consultations

Ongoing, Constructive, and Professional Relationship with Stakeholders

Broadly defined, stakeholders are individuals, groups, or organizations likely to be affected by proposed regulatory changes. In conducting regulatory consultations, officials should recognize and understand the multiplicity of stakeholders, with their different levels of interest, points of view, and expectations concerning the nature and content of a proposed regulatory regime.

An ongoing, constructive, professional relationship between government and stakeholders is key to achieving a quality outcome from consultations. Applying the following principles will help to achieve this type of relationship.

• Meaningfulness: Officials conducting the consultations should be open to stakeholders' views and opinions and should take these into account in preparing the proposed regulations. They should be impartial with respect to the views expressed and willing to allow them to influence the final version of the proposed regulations, if appropriate. If some aspects of the proposal are not subject to change, this should be clearly communicated, so that participants can focus their efforts and provide meaningful input. Clarity regarding the purpose and objectives of the consultation and the proposed regulations is an essential underpinning of a positive relationship.
• Openness and balance: All stakeholders, whether directly or indirectly affected, should have an opportunity to contribute their views. Significant effort should be made to identify the "most affected stakeholders." Officials should ensure that an appropriate balance of views is represented in the consultation process.
• Transparency: The relationship between the department and stakeholders should be transparent. A transparent approach is essential to building trust. Officials should ensure transparency of:
  • the overall regulatory consultation process
  • pertinent non-sensitive information
  • the decision-making process
  • how stakeholder input will be used
• Accountability: Departments should demonstrate accountability by documenting how the views of stakeholders were considered during the development of the regulations and informing stakeholders of how those views were used. Where stakeholder input could not be reflected in the proposed regulations, officials should be able to outline the reason(s) why. Accountability also involves ensuring that the consultations take place over a reasonable period of time, so that participants have sufficient time to submit their views.

Introducing successful regulatory proposals requires the development and nurturing of ongoing relationships between the government and stakeholders. A climate of mutual trust and respect will often carry forward to future consultations. Developing a network of stakeholders allows officials to tap into a wider array of knowledge and information that can greatly assist in the effective and efficient development of regulations.

Examples of Stakeholders

Citizens and community groups Industry groups Non-governmental organizations Provinces, territories, municipalities Foreign governments Unions Individual companies International organizations Professional associations Consumer groups

Consultation Plan

Good regulatory proposals begin with good planning. A clear and comprehensive consultation plan is key to achieving the goals and objectives of the proposed regulations and facilitating a smooth consultative process. The development of the consultation plan requires an upfront investment of time, budget, and effort.

The consultation plan should frame the boundaries of the consultation process. It should precisely state the objectives of the process and include the issues under review, a public environment analysis, key participants, timelines, and a mechanism for reporting consultation results. It should clearly describe the proposed consultative approach and "rules of engagement," so that interested parties can decide whether or not to participate and, if so, how.

Where appropriate, stakeholders can be invited to provide input on the development of the consultation plan, including on how the consultation should be conducted and which consultative tools would be most appropriate. Stakeholder input can also be requested during the consultations that take place at the policy development or instrument choice analysis phase. Pre-consultations also help stakeholders to plan their input, budget, and time.

The consultation plan should be commensurate with the expected impact and scope of the proposed regulations. A well-designed regulatory consultation allows stakeholders to provide input through a variety of mechanisms (e.g. public forums or advisory groups) that are both convenient and adapted to their abilities and resources. However, in some circumstances, a detailed consultation plan may not be necessary. For example, in many cases, departments use established ongoing committees or councils made up of all stakeholders affected by a particular regulated area (e.g. civil aviation). In such cases, "terms of reference," a charter, or other similar document should be developed to support the work of the consultation mechanism. As well, for routine or low-impact proposals (e.g. administrative amendments), a detailed plan may not be necessary.

Statement of purpose and objectives

The consultation plan should begin with a clear statement of the purpose and objectives of the consultations. A well-defined statement of purpose will help to keep the consultations focussed and on track and will clarify the scope and boundaries of the consultative effort.

The statement of purpose should plainly set out the problem or outcome that the proposed regulatory initiative purports to address. The Cabinet Directive on Streamlining Regulation requires that interested and affected parties be given the opportunity to contribute to issue identification and the objectives for government intervention. Seeking stakeholder input on the problem or issue statement can help to ensure that the regulatory solution effectively addresses the problem. The statement of purpose should also present a compelling argument for government intervention, clearly demonstrate the need for the proposed regulations, and explain why regulation is the tool of choice over other instruments such as legislation, policy, or voluntary codes.

Invariably during a consultation process, some stakeholders will raise issues that are not central to the consultations. A clear statement of purpose and objectives can help officials to maintain a definite focus and to deflect distractions that are outside the consultations' parameters. The statement of purpose should be broad enough and flexible enough to accommodate stakeholders' views, but precise enough to keep the discussion centred on the issue at hand.

Checklist 1

Yes	N/A	A clear statement of purpose at the beginning of the consultation plan should:
		Explain the problem the proposed regulations are addressing
		Explain why the regulations are being developed (i.e. economic, social, or safety benefits)
		Define what the proposed regulations will do
		Describe how the regulations will be developed (i.e. process to be followed)
		Outline the scope of the regulatory consultation process (i.e. what can and cannot be considered as part of the consultations)
		Identify the authority for the regulations
		Be written in plain, easy-to-understand language

Public environment analysis

The consultation plan should include an analysis of both the internal and external environments.

An internal scan is necessary to confirm that there is ministerial and senior management support, policy approval, and consistency with government priorities.

An external scan assesses the level of public and media interest and the potential positions of stakeholders (e.g. what they may propose, their perspectives on the issue, and potential sources of conflict). This will help to identify any potential communications challenges arising from the consultations and form the basis of a communication plan, if necessary, to address these and any other challenges that may arise.

The public environment analysis is an important component of the regulatory triage process that should be undertaken at the outset of regulatory development. The analysis should consider factors to determine the size and scope of the consultation process and the type of tools needed to conduct the consultation. The checklist below provides some key considerations for determining the importance and scope of the consultation exercise.

Checklist 2

Yes	N/A	A clear statement of purpose at the beginning of the consultation plan should:
		Determine senior management's commitment to the proposal
		Confirm ministerial support for the proposal
		Determine whether there is appropriate policy authority for the regulatory proposal
		Assess consistency with government priorities (e.g. Speech from the Throne, budget)
		Research emerging legislation, policy, or litigation that could affect the consultation

Checklist 3

Yes	N/A	A clear statement of purpose at the beginning of the consultation plan should:
		Determine the level of public interest (e.g. public opinion research, degree of impact on citizens)
		Examine how the general public might perceive the issue
		Assess stakeholders' perceptions of the proposal
		Review past positions of stakeholders (e.g. websites, previous submissions, letters, past consultations)
		Determine whether the issue is contentious (e.g. whether there is special interest or media interest)
		Assess the social, economic, health, and/or environmental impacts of the proposal
		Examine relevant reports from parliamentary committees
		Review reports from relevant independent bodies
		Assess potential provincial, territorial, and municipal government views
		Review any previous lobbying by stakeholders
		Assess whether there will be difficult choices or trade-offs
		Determine whether certain stakeholder groups benefit more than others
		Determine whether there were similar approaches taken by other governments

Developing realistic timelines

The consultation plan should include realistic timelines that identify activities and set milestones for all aspects of the consultative process. It should also be flexible enough to allow for unforeseen circumstances.

The amount of time required for a consultation depends on the complexity of the issue and the consultation methods selected. It is easy to underestimate how long it will take to plan, implement, and evaluate a consultation process.

Involving stakeholders in determining timelines can be an important part of building and securing a positive relationship with them. Whether or not they take part in setting time frames, participants should be kept informed of the schedule and, in particular, of when their input will be solicited. This will keep them focussed and allow for monitoring throughout the process and for any adjustments that may be required in objectives and plans.

Sufficient time should be allowed for groups and individuals to become informed, examine the issues, debate/dialogue/consult within their organizations, and develop a response.

Consultations should be managed in a way that ensures that stakeholder time is well spent, in order that stakeholders feel that their time investment was worthwhile and meaningful. Agendas should be sent to stakeholders in advance of consultation sessions.

Consultations should take place early enough in the policy (or regulatory) development process to ensure adequate time for all aspects of the regulatory process (e.g. drafting by the Department of Justice Canada, senior management approval, ministerial sign-off, Treasury Board of Canada Secretariat review, parliamentary schedule, pre-publication timelines, final approval).

Examples of Stakeholders

Citizens and community groups

Industry groups

Non-governmental organizations

Provinces, territories, municipalities

Foreign governments

Unions

Individual companies

International organizations

Professional associations

Consumer groups

Regulation of 2-butoxyethanol (2-BE)

Issues and Objectives

• In conducting the cost-benefit analysis for the proposed regulation over a period of 20 years, the first step is to establish a baseline scenario of what the outcomes would be over time with no regulation in place.
• By observing the historical data, it was discovered that the quantity of 2-BE used in Canada was growing in the 1990s and peaked in the year 2000 at approximately 8 kilotonnes (kt). Since 2001, the quantities of 2-BE used have been declining, reaching about 4.6 kt in 2004. This represents an average annual decline rate of 12.6 per cent because of the replacement of 2-BE with alternative formulations.