Investigation reports released November 1 by Canada's Commissioner of Lobbying are a further reminder that it is imperative for lobbyists to register. The reports also highlight a continuing gap between awareness and legal reality. Many individuals who deal with the federal government are unaware that they must register under the Lobbying Act; as the saying reminds us, ignorance of the law is no excuse.
The four investigation reports concluded that five individuals engaged in unregistered lobbying at various times over a decade. The earliest of the unregistered lobbying occurred between March 1998 and February 1999. The most recent unregistered lobbying took place as late as June 2007.
Unregistered lobbying is a contravention of the Lobbying Act (formerly the Lobbyists Registration Act.1) None of the five individuals, however, was charged with an offence under the Act. Instead, each was found to have violated the Lobbyists' Code of Conduct. Violation of the Code does not carry a penalty2 but being the subject of a detailed report to Parliament and of subsequent news media coverage is a significant deterrent.
The investigation reports should serve as wake-up calls to consultants and to those who hire consultants to interact with the Government of Canada. The findings are especially relevant to corporations, associations and band councils under the Indian Act.
The reports contain four significant reminders. They also confirm an important understanding that the Act does not apply to many activities of Indian band councils and Aboriginal groups.
Wake-Up Call #1: Arranging a Meeting is Lobbying
Two of the five individuals arranged meetings between their clients and federal officials. They did not otherwise engage in federal lobbying.
Nonetheless, they were supposed to register as lobbyists. When a consultant is paid to arrange a meeting between a federal public office holder and any other person, the consultant must register.
The act of arranging the meeting requires registration even if the meeting itself does not involve lobbying. In one case a consultant arranged meetings on behalf of his client, an Indian band council. The topic of the meetings did not involve lobbying. Nonetheless, the consultant was required to register3 because the Act provides as follows:
Another consultant argued, unsuccessfully, that he had not arranged meetings, but merely had responded to government requests to meet with his client:
The Commissioner of Lobbying rejected this argument. She observed that, "He arranged meetings with federal public office holders on behalf of his clients, for payment."6 That was enough to trigger the registration requirement.
While these findings were made under federal law, it should be noted that the lobbying law in every other Canadian jurisdiction requires a consultant to register as a lobbyist when he or she is paid to arrange meetings between a public office holder and another person.
Wake-Up Call #2: Clients Should Monitor What Their Consultants Are Doing
Responsibility for lobbyist registration rests with the consultant, not with the client who hired the consultant.
Consequently, the findings that the five individuals had contravened the Lobbyists' Code of Conduct do not extend to their clients. In fact, all the clients were unaware that the consultants were supposed to register and had failed to do so.
Nevertheless, the clients were named in the investigation reports and many of them were mentioned in subsequent news coverage.
These clients included several corporations, an industry association, an Indian band council, the government of a US state, and a non-profit society.
The client of a consultant can avoid unwanted publicity by confirming whether the consultant is required to register as a lobbyist and then checking whether the consultant has done so. A good practice would be for the client to insert into the consulting contract a requirement that the consultant comply with any lobbyist-registration requirements and that the consultant save the client harmless for the consultant's failure to do so.
Wake-Up Call #3: Consultants Hired by Exempt Entities Must Still Register as Lobbyists
Indian band councils and their employees are not required to register when they lobby the Government of Canada. Nor are foreign governments and their employees.
However, when an exempt entity hires a consultant to arrange meetings on its behalf, the consultant must register. Similarly, a consultant hired to arrange meetings for a foreign government must also register.
The Commissioner of Lobbying noted that employees and consultants are treated differently under the law. In many cases where an employee would not be subject to lobbyist registration, a consultant would be subject to registration.
Wake-Up Call #4: Employees of Consulting Firms Are Consultants (Not Employees)
As noted, the law distinguishes between a consultant who lobbies on behalf of a client ("consultant lobbyist") and an employee who lobbies on behalf of his or her employer ("in-house lobbyist").
One individual advanced the novel argument that he was not a consultant lobbyist because he had not been hired directly by a client; he was an employee of the consulting firm hired by the client. The Commissioner rejected this argument, upholding the commonly held understanding that a "consultant lobbyist" includes both someone engaged directly by a client and someone working for the consulting firm engaged by a client.7
Confirmation: Many Activities of Indian Band Councils and Aboriginal Groups Are Not Lobbying
The Commissioner of Lobbying also took the opportunity to reiterate that many activities of Indian band councils and Aboriginal groups are not subject to the Lobbying Act or its predecessor, the Lobbyists Registration Act.
First, the Commissioner reiterated several important exclusions from the Act. Lobbyist registration does not apply to any of the following persons when acting in their official capacities:8
- Members of the council of a band as defined by the Indian Act or established by an Act of Parliament.
- The staffs of band council members.
- Employees of band councils.
- Members of an Aboriginal government or institution that exercises jurisdiction or authority under a self-government agreement, or under self-government provisions contained in a land claims agreement, given effect by or under an Act of Parliament.
- The staffs of members of such Aboriginal governments and institutions.
- Employees of Aboriginal governments and institutions.
As explained above, consultants hired by band councils and Aboriginal governments are not excluded by these provisions because the exceptions apply only to council/government members and employees.
Second, the Commissioner noted that many of the topics on which band councils and Aboriginal governments engage the Government of Canada do not involve lobbying, even if the band councils or Aboriginal governments retain consultants (non-employees) to assist them.
The Lobbying Act broadly exempts communication with a federal official related to the interpretation or application of federal law to a person or organization.9 The Commissioner explained some of the circumstances in which this exemption would apply to Aboriginal communities and groups:
The Commissioner went on to confirm that even if the treaty, claims or self-government negotiations would result in a financial benefit (lobbying about a financial benefit usually requires registration), the negotiations and discussions with the federal government would not be subject to the Lobbying Act.11
Footnotes
1. The Lobbyists Registration Act was in force at the time of the activities covered by the reports.
2. Violation of the Lobbyists' Code of Conduct is not an offence. Enforcement consists of investigations and reports to Parliament by the Commissioner of Lobbying.
3. Office of the Commissioner of Lobbying of Canada. (2011, November 1). Report on investigation — The lobbying activities of Graham Bruce, pp. 25-26. Retrieved from www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/nx00654.html#ToC
4. Lobbying Act, formerly Lobbyists Registration Act, subs. 5(1).
5. Office of the Commissioner of Lobbying of Canada. (2011, November 1). Report on investigation — The lobbying activities of Mark Jiles, p. 19. Retrieved from www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/nx00664.html
6. Ibid.
7. Report on investigation — The lobbying activities of Graham Bruce, note 3, pp. 21-22. Though she disagreed, the Commissioner characterised the individual's submission as "a legitimate legal argument." Her assessment seems generous, given that other members of the consulting industry have generally had no trouble understanding the distinction between consultant lobbyists and in-house lobbyists.
8. Lobbying Act, formerly Lobbyists Registration Act, paras. 4(1)(d), (d.1).
9. Lobbying Act, formerly Lobbyists Registration Act, para. 4(2)(b). Subs. 4(2) reads, in part, as follows: "This Act does not apply in respect of ... (b) any oral or written communication made to a public office holder by an individual on behalf of any person or organization with respect to the enforcement, interpretation or application of any Act of Parliament or regulation by that public office holder with respect to that person or organization."
10. Report on investigation — The lobbying activities of Graham Bruce, note 3, p. 22.
11. Ibid., pp. 22-23.
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