THE REGULATION OF CANADIAN LOBBYISTS DOMESTICALLY AND ABROAD

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (Apr 2019)
CHAPTER 3A
THE REGULATION OF CANADIAN LOBBYISTS DOMESTICALLY AND ABROAD
Noble C. Chummar, LL.B., LL.M., ICD.D.
Partner, National Head of Government Practice
Cassels Brock & Blackwell LLP
Canada

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NOBLE CHUMMAR is a partner with Cassels Brock & Blackwell LLP, a leading Canadian law firm with offices in Toronto and Vancouver and is a member of the firm's Business Law and Government Relations groups. He advises clients on public policy matters from a wide range of industry sectors, including energy, government, education, pharmaceutical, hospitals, insurance, mining, transportation, banking, retail and real estate development. Noble serves on a number of private and public sector boards, and has served two terms at the College of Physicians and Surgeons, the regulatory body that governs doctors in the Province of Ontario. He is also a strategic advisor to the Chairman of the Toronto 2015 Pan Am/Parapan Am Games, and a past president of the Empire Club of Canada. Noble has been decorated with the government of Canada's 125th Anniversary of the Confederation of Canada medal and the Queen's Diamond Jubilee medal. In 2016, he was decorated with the rank of Chevalier in the Order of Merit from the Government of France. He graduated from law school at the London School of Economics and also received his Masters of Law from Osgoode Hall Law School. Noble is a graduate of the corporate directors' program at the Rotman School of Management at the University of Toronto and is a member of the Institute of Corporate Directors. His passions include film, SCUBA diving and travel.

Introduction

Lobbying is a word that is often synonymous with corporate influence, bribery, and corruption. This perception stands in strong contrast to the conceptual view of lobbying as a central part of the democratic process.¹ Lobbying enables a democratic dialogue between various interest groups and the political institutions that regulate such industries, and enables political actors to make decisions based on sound information and technical expertise.² Lobbyists can range from those with economic interests (corporations), professional interests (such as trade unions or representatives of a professional society), and civil society interests (such as environmental groups), each bringing a unique perspective and source of information for decision makers to rely upon.³ Taken to its extreme conclusion, the absence of lobbying would leave government representatives making policy decisions and proposals on instinct and misinformation.⁴

In practice, however, lobbying has at times struggled to adhere to this lofty premise. Interest-group influence can lead to an inequality of representation, and political actors can have adverse incentives (namely financial) when choosing which information to rely on in their decision-making process.⁵ Given the inherently

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private nature of lobbying activities, people can often feel that decision-makers may be acting out of self-interest, or in alignment with corporate interests. To counter some of these concerns, Canada has legislation that regulates lobbying activities, and ensures that the process is conducted in a democratically efficient and transparent manner.

Regulating lobbying activities

At its core, the regulation of lobbying is meant to ensure transparency. Transparency brings with it a variety of benefits, including reducing both the opportunity and appearance of corruption amongst officials, encouraging public confidence in their governing bodies, improving accountability of government officials, and providing information to both public officials and interest groups of others' lobbying activities.⁶ Transparency, however, can come with high economic costs to the participants, and potentially banish the candour in communications that is arguable necessary in pursuit of the optimal public policy.⁷ There is also the question of how much information must be disclosed in the pursuit of transparency to be both efficient and usable to other actors - at a certain point, information overload can be a burden rather than an aid to understanding.⁸

Transparency can be achieved through registration. The impacts of registration will depend on who is required to register, what information they are required to submit, and who can access the registry.⁹ Registration should seek to provide information on who the lobbyist's clients are, and the subject-matter and targets of their lobbying efforts. Early analysis of Canada's registration regime found discrepancies in the anticipated and actual registration numbers, which they attributed to the self-reporting process of registration, and the (at the time) high

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threshold for what qualified as lobbying under the legislation.¹⁰ Interestingly, while the concept of registration initially received some push-back given fears that it would be onerous and potentially lead to a loss in lobbying clients, this proved to be untrue, and in fact, one study posited that the most significant impact of the registration process was the knowledge it gave to the lobbyists themselves, enabling them to monitor their competitors and identify new clients.¹¹

Interestingly the premise behind regulating lobbying has varied in different...