Bill 1, the Lobbyists Act

Written By James J. Heelan, Q.C.

The Alberta government began the latest session of the legislature by introducing its new lobbyists legislation, the Lobbyists Act. The Act, which had its first reading on March 7, 2007, will create a publicly-available registry of lobbyists and will require the filing of returns detailing the identity and activities of lobbyists. The Act also prohibits consultant lobbyists and organization lobbyists from providing paid advice to the government or a prescribed provincial entity.

The reporting requirements under the Act apply both to consultant lobbyists and to organization lobbyists. A consultant lobbyist is a person who, for payment, undertakes to lobby on behalf of a client. An organization lobbyist is defined as follows:

1. an employee, officer, or director of an organization who receives a payment for the performance of his or her functions and who lobbies on behalf of
   1. the organization, and
   2. if the organization is a corporation, any subsidiary of the corporation or any corporation of which that corporation is a subsidiary;
    
2. a sole proprietor who lobbies on behalf of his or her business; or
3. a partner who lobbies on behalf of his or her partnership.

It is notable that this Act, as it is currently worded, does not include a requirement that the duties of the organization's employee form a significant part of the employee's duties, as in the federal lobbyists legislation, the Lobbyists Registration Act, R.S.C. 1985, c. 44. The Act does permit regulations to be promulgated respecting the circumstances in which individuals or categories of individuals are considered not to be organization lobbyists, but it is not clear if a similar limitation will be included by way of regulation.

The Act defines lobbying by consultant lobbyists and organization lobbyists as communicating with a public office holder in an attempt to influence any of the following:

1. the development of a legislative proposal;
2. the introduction of any bill or resolution, or the amendment, passage, or defeat of any bill or resolution;
3. the development or enactment of any regulation or order in council;
4. the development, establishment, amendment, or termination of any policy, directive, or guideline of the government or a prescribed provincial entity;
5. the awarding of any grant or financial benefit by or on behalf of the government or a prescribed provincial entity;
6. a decision to transfer from the Crown for consideration all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown, or a prescribed provincial entity, or to the public; or
7. a decision to have the private sector instead of the Crown provide goods or services to the government.

With respect to consultant lobbyists, the Act additionally provides that lobbying will include the following:

1. arranging a meeting between a public office holder and any other individual; or
2. communicating with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the government or a prescribed provincial entity.

Nevertheless, the Act will not apply to submissions made in proceedings that are a matter of public record; to submissions regarding enforcement, interpretation, or application of legislation; to submissions regarding implementation or administration of programs, policies, directives, or guidelines; or to a submission made by a constituent to a member of the legislative assembly, unless the submission concerns a private bill for the benefit of the constituent. One provision that may prove controversial exempts requests for information coming from a public office holder. A similar provision was removed from the federal lobbyists legislation.

Under the Act, consultant lobbyists will be required to file a return within the prescribed period of time after the coming into force of the Act where there are existing undertakings to lobby, or upon entering into new undertakings. Organizations with organization lobbyists will be required to file a return within the prescribed period after the coming into force of the Act, after an individual becomes a lobbyist in the organization, as well as every six months thereafter. Returns identify details about the consultant lobbyists, including whether any lobbyist is a former public office holder, this term being defined to include senior government officials or other prescribed persons. Returns also identify those hiring the consultant lobbyists or information about the organization, details about funding and payments (including the existence of a contingency fee agreement), and details about past and intended methods of lobbying.

Returns are to be made to the Registrar of the Act, a position held either by the Ethics Commissioner, or by his designate. Returns filed pursuant to the Act will be available to the public in the manner determined by the Registrar. The Act will also give the Registrar powers to issue advisory opinions and to conduct compliance investigations, including the power to compel sworn testimony and the production of documents. Offences under the Act are punishable by a fine of up to $50,000 for a first offence and up to $200,000 for a subsequent offence, as well as a prohibition on lobbying of up to two years. The Act also provides for administrative penalties, up to a maximum of $25,000.

The Act has yet to make its way through the legislature and therefore it is not yet the law in Alberta.