After years of often feeling excluded from the policy making and legislative process, many civil society groups were excited by the prospect of a new government committed to public consultations and feedback. The Liberal government moved quickly to consult on all manner of issues, providing hope that an emphasis on participatory democracy would lead to better policies and an opportunity to incorporate a broader range of perspectives.
My op-ed in today’s Hill Times notes that two years into the Liberal mandate, the consultative process is now a well-established part of how policy is developed. It is nice to be asked for your opinion, but Canada is increasingly facing a consultation crisis as the sheer volume of hearings, notices, and consultations can be overwhelming.
In the digital policy field, over just the past few months there have been consultations on a Canadian intellectual property strategy, Copyright Board of Canada reform, wireless spectrum allocation, security breach disclosure rules, the future of broadcasting, NAFTA, and the Trans Pacific Partnership. On top of that, there have been committee hearings on airport and border privacy, private sector privacy rules, anti-spam legislation, intellectual property and technology transfer, and the trade agreements. The consultations won’t end there with the reviews of the Copyright Act, Broadcasting Act, and Telecommunications Act all looming on the horizon.
The crushing consultation load raises at least three major issues. First, it is simply unsustainable for all but the most deep-pocketed organizations, effectively excluding many public interest voices who lack the resources to invest a growing proportion of their time on government consultations or hearings.
The volume of consultations and the absence of a public interest voice often leads to problematic outcomes: either the responses are entirely one-sided since only corporate interests can meaningfully participate or the consultation itself attracts few responses and is of limited value to policy development.
For example, the government emphasized the importance of its IP strategy in the 2017 budget and ISED Minister Navdeep Bains proceeded to launch a public consultation on the issue. The consultation closed with just 18 responses (I provided one of the submissions). Given months of public discussion on the importance of IP, garnering a dozen and a half responses can only be viewed as a consultation failure that does little to advance the policy agenda.
Second, many of the public interest organizations that participate in hearings and consultations are now stretched to the financial breaking point. The government provides limited, if any, support for public interest advocacy, meaning these groups must self-fund participation. Unlike the United States, which has developed a reasonably resourced civil society, Canadian groups are struggling badly under the weight of increased policy demands with no accompanying fiscal support.
In fact, even when there are programs that provide compensation for expenditures related public participation, processing delays can still leave groups in limbo. For example, the Canadian Radio-television and Telecommunications Commission has policies that allow public interest groups and individuals to receive compensation for their participation costs. Yet groups report that CRTC decisions on cost awards can drag on for years, forcing them to carry hundreds of thousands of dollars of financial obligations arising from hearings that have long since concluded.
Third, the volume of consultations run the real risk of turning into “consultation theatre”, where the government or agencies seek out public participation not as a mechanism to generate ideas or gauge public opinion, but rather as a validation exercise at best or as theatre with no intent to act on submissions at worst. This may alienate Canadians who seek to participate in policy processes in good faith only to be left with the inescapable sense that their opinions mean little to policy outcomes.
The fears of consultation theatre were on display this summer with the government’s heated consultation on small business tax reforms. While the consultation was still ongoing, Canadian media reports indicated that the Department of Finance was nearing conclusion on changes to the initial proposal. The changes might be welcomed by many participants, but finalizing policy reforms before the consultation ends sends a message that the submission process is little more than a theatrical exercise.
In fact, when combined with the paucity of financial support for public interest participation, the consultations run the risk of the worst of all worlds: government claiming that it has consulted, well-resourced organizations dominating the process, the public effectively excluded due to limited resources, and the few that participate facing signals that their time and effort are primarily a prop that gives only the veneer of meaningful feedback.
The solution does not lie in scaling back or eliminating public consultations. Rather, the government must turn its attention to how to make them more effective. Those steps include ensuring that civil society groups are properly resourced or provided with support for public participation efforts, running open, inclusive consultations with full disclosure of participants and submissions, and taking feedback seriously by demonstrating that there is a real connection between public input and public policy.