A TYEE SPECIAL REPORT
Even their sworn enemies cheered the B.C. Liberals when, four years ago, they moved to shine a light on hired guns paid to sway politicians.
But now the official administrating the program says it has many "loopholes" and doesn't really measure who is influencing government.
The Lobbyists Registration Act, passed in August of 2001, requires everyone who is actively lobbying in the province to disclose their activities on a province-wide registry. Among those applauding the new law was Bill Tieleman, who served as an advisor and part-time lobbyist when the NDP was previously in office. "The Liberals have done an unquestionably good thing: opening the shadowy world of government lobbyists to public scrutiny," Tieleman wrote in his column for the Georgia Straight.
But while the registry does offer much data previously unavailable, some of its shortcomings are becoming apparent.
Mary Carlson, director of policy and compliance for the Information and Privacy Commission, is in charge of overseeing the registry. She says the registry, and the Act itself, are deeply flawed.
Among the problems Carlson and other observers cite: The registry relies on an honour system; there is little to no enforcement; and the definition of "lobbyist" is too blurred or restrictive to truly keep tabs on who has pull with legislators.
'Lot of loopholes'
When the law was passed in B.C., it reflected lobbyist registries already established in several provinces and by federal government. The B.C. registry made it possible, for the first time, for British Columbians to have access to a list of people and organizations actively lobbying in the province, as well as whose causes they were pushing. The entire registry is available online for anyone to see.
Carlson and one other part-time registrar are responsible for registering every lobbyist in the province, and for handling any complaints.
"Part of the problem with this legislation, and I don't mind saying it, we didn't create it, we just inherited it, is that there are a lot of loopholes," Carlson told The Tyee. "If really what you would like to measure is who is influencing government, it doesn't really do that."
Carlson said she has registered 182 lobbyists in B.C., but stresses the system is "run on the honour system more than anything." Carlson hasn't the staff or the mandate to actively monitor lobbying in the province. Likely the only way her office would come to know that a lobbyist hadn't registered would be through a filed complaint. A member of the public would have to come forward with evidence of impropriety – evidence that is hard to come by in the murky world of closed door meetings.
The 20 percent rule
Of three major lobbyists contacted by The Tyee, none would go on the record to talk about the registry. However sources in the business said that most high-profile lobbyists comply with the regulations rather than face the $25,000 penalty for failing to do so.
But Carlson says the registry leaves off many more people who are lobbyists in a broader sense than the Act defines.
"The definition of lobbying is that it has to be a significant part of your job; 20 percent. Meaning face-to-face kind of stuff. What if you had a 100-page report that took you a month to put together and distributed it to every MLA. How do you calculate that?" she asks.
Carlson said the biggest loophole is that by the provincial definition, a lobbyist must be paid for his or her efforts.
"There are a lot of people who influence and lobby government and aren't being paid to do it," she said.
In fact, in the only complaint Carlson said she has investigated in the past three years about someone lobbying without registering, it was later determined the person was not being paid for their efforts and the matter was dropped.
Tulsequah Chief dispute
So who is a lobbyist and who isn't? Finding agreement is not always easy. Take the example of Bruce Rawson, a former Department of Fisheries and Oceans deputy minister who helped a mining company in a meeting attended by officials of the B.C. government and the DFO.
The meeting was about Redfern company's proposed Tulsequah Chief mining project in Northwestern B.C.
For years, the Transboundary Watershed Alliance, a Canadian-U.S. international watershed protection agency, has been in a dogfight with the provincial government and the DFO over the development of the Tulsequah Chief project.
The TWA says that provincial and federal environmental assessments failed to gauge the mine's dire threat to a large salmon fishery and other wildlife. As part of their ongoing campaign against the mine, TWA requested under the Freedom of Information and Privacy Act copies of all correspondence between DFO officials, the B.C. Environmental Assessment Office, and the proponent, Redfern Resources Ltd.
The correspondences revealed a meeting took place on May 31, 2004 between representatives of all three parties unbeknownst to the TWA. DFO officials say the meeting was to get the stakeholders up to speed on the project and to set a timeline for the approval process.
The TWA discovered an unfamiliar name repeated throughout the correspondence.
Bruce Rawson, a former DFO deputy minister, also attended the May meeting and spoke on behalf of Redfern. Rawson, however, is not registered as a lobbyist in B.C.
Rawson is retired from the DFO and owns a government relations firm in Ottawa. He was acting as a "government relations consultant" for Redfern, according to Terry Chandler, president and CEO of Redfern.
Chandler said he was unaware of the B.C. registry, but did not think Rawson could be considered a lobbyist.
"In some cases he might be considered a lobbyist. He doesn't lobby directly, he basically assists us in what approaches we should take to government. He helped us arrange the meetings. He's in Ottawa; we're out here. It helps if you have someone local," Chandler told The Tyee.
However, under the provincial definition of a lobbyist, anyone who is paid by a client to set up meetings with public officials would need to register under the Act – even if that person was considered a government relations consultant.
'Not a political person'
Rawson said he believes his duties to Redfern fell short of what is required for him by law to register.
Contrary to what Chandler said, Rawson told The Tyee he did not set up meetings with the public officials. He said he only made the initial contact with the provincial and DFO officials, but left the final arrangements up to Chandler.
"I'm not a political person. I'm not calling in favours. I'm an ex-bureaucrat working on an issue that is sometimes very confusing to a company or citizen," Rawson said.
"I'm collecting information and giving advice and Fedfern might be doing advocacy, but I'm as careful as I can be. I hope I haven't made a mistake," he said.
The impact of having Rawson at those meeting may have played a part in the DFO giving approval to a draft screening report on the project earlier this month, contends David MacKinnon of the TWA.
Up until the meeting in May, the DFO had several concerns about a herd of caribou that migrate through the area, which the Tklingit First Nation hunt.
The B.C. Environmental Assessment Office had already signed off on its assessment and was confident in the monitoring system Redfern has promised to finance.
The DFO dropped their concerns after the meeting.
Chandler told The Tyee that Redfern brought it to the DFO's attention in the May meeting that wildlife is not under the jurisdiction of the federal agency, but rather falls under the province's mandate.
Carlson of the B.C. registry said Rawson's actions come very close to what would be defined as a lobbying effort.
"If you're facilitating meetings and getting paid for it, it sounds pretty close to what would be considered lobbying," Carlson said.
B.C. not uncommon
Critics say one shortcoming of the current lobbyist registry legislation – a problem shared by others across the country – is that since lobbying is done behind closed doors, if any improper lobbying does occur, it is difficult for anyone outside to know and blow the whistle.
And even when a complaint is filed, registry officials like Carlson don't have much juice. "It's very questionable what we can do if we get a complaint," Carlson said. As it stands, all she can do is write a letter to the lobbyist or the company and ask them to register.
"If we had reason to believe someone is lobbying, we would have to refer them to the Attorney General, because we don't have the power under the Inquiry Act to compel people to answer our questions," Carlson said.
No lobbyist anywhere in the country has ever been convicted of failing to register, Conacher told The Tyee. In most cases, lobbyists who have failed to register simply do so when a complaint is filed.
Conacher also claims that laws are skewed in favour of corporate lobbyists compared to those who advocate on behalf of non-profits.
For instance, a non-governmental agency like Democracy Watch is required to add up all of its employees' efforts as if they were performed by one person.
So, if there are five people in an NGO working on a campaign, each dedicating four per cent of their job to a lobbying effort, then the NGO would have to register as a lobbying group because combined their efforts would add up to 20 per cent.
By contrast, a corporation is assessed by individual efforts. If a corporation has 100 people dedicating 19.9 per cent of their job to lobbying, they would not have to register, Conacher said, so long as not one person was contributing more than 20 per cent of their job to the lobbying effort.
"The rationale is clear, it's to hide corporate lobbying," Conacher said.
Pushing national reforms
In March, Conacher said, reforms to the federal lobbyists registry will come into affect that will even the playing field for corporations and NGOs.
The reforms are also expected to require lobbyists to register what government agencies employed them in the past, or at the time they register.
But Conacher said these reforms are not enough. Registries should also include those who have been lobbying for free and eliminate the standards for how much of someone's job is dedicated to lobbying, he said.
He added one more provocative suggestion. Not just the lobbyists, but the public officials being lobbied should be required to make public that information, Conacher said.
"The registry is totally backwards in the way it's designed. Public officials are required by law to uphold the public's trust, so they should be the ones required to disclose who is lobbying them," Conacher said. "As soon as you reverse it, you then have to define who a lobbyist is. As soon as you draw a definition, you draw lines that leave out some lobbyists."
Scott Deveau is on staff at The Tyee.