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Accountability for Subordinate Legislation: The Case of the Aboriginal Communal Fishing Licences Regulations

Type: Research Studies
Date Published: May 1, 2003
Research Topics:
Aboriginal Issues, Risk & Regulation
This paper focuses on the ability of the Standing Joint Committee for the Scrutiny of Regulations in Canada's Parliament to hold ministers accountable for the legality of the subordinate legislation (primarily regulations) sponsored by their department. The Committee is only one of a number of entities within the federal government that focus on some aspect of ministers' activities for the purpose of holding them accountable.

The essence of any accountability regime (mechanism) is to evaluate the performance of persons to whom authority has been delegated with respect to the exercise of that authority, and to sanction or reward the person in light of the evaluation of their performance. The essence of authority is power - the ability to make certain things happen (or not to happen) even in the face of the opposition of other persons. The concept and practice of accountability is central to the idea of democracy. We insist on holding people accountable because a) it is necessary for those with the ultimate legitimate authority (the citizens in a constitutional democracy) to delegate part of their authority to others (their agents), and b) because power corrupts - it will almost certainly be abused, and so the exercise of the power must be controlled. Thus, those with legal authority to act (in this case in the name of the people) must be called to account for the actions taken to exercise the authority delegated to them.

This paper is organized as follows. Section 2 compares the process by which statutes are created (or amended) to that by which subordinate legislation is made into law. Section 3 briefly explores the role and activities of the Standing Joint Committee for the Scrutiny of Regulations. Section 4 consists of a detailed chronology of one (large) set of regulations, the Aboriginal Communal Fishing Licences Regulations (ACFLRs), focusing on their review and evaluation by the Standing Joint Committee. Thus, this paper is essentially a case study, but like other case studies, it is intended to identify lessons that have much wider application. Section 5 consists of my conclusions with respect to the accountability of ministers for their subordinate legislation based on the case of the ACFLRs. Section 6 contains further discussion and reflections on the case of the ACFLRs.
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