A full year after the province claimed it would make B.C. the ‘most transparent lobbying regime in Canada,’ major loopholes remain — leaving secret, unregistered lobbying completely legal

“The most transparent lobbying regime in Canada.”

That’s what Attorney General David Eby told British Columbians they were getting when the provincial government announced amendments to lobbying rules last year.

“Big money and political insiders have had too much influence for too long,” Eby said. “These changes are long overdue and build on our continuing work to strengthen B.C.’s democracy for all British Columbians.”

Eby’s comments are part of a long line of promises from the B.C. NDP to clean up politics, eliminate big money donations and ferret out corporate influence — which includes Bill 54, the province’s lobbying amendment act introduced last October.

But in spite of much talk and limited action, the secret lobbying of elected officials remains a common practice in B.C. today, according to Duff Conacher, coordinator of Democracy Watch, an Ottawa not-for-profit focused on making Canadian governments and corporations more accountable.

“Secret, unethical lobbying is very easy to do in B.C. still,” Conacher says. “[The NDP] started with very strong rhetoric, but they didn’t follow through.”

Conacher says all of the recently announced changes — including a strengthened two-year ban on lobbying for politicians or high-level bureaucrats after leaving office — only apply to those who officially register with B.C.’s Office of the Registrar of Lobbyists.

But if you are not being expressly paid to lobby, or do less than 50 hours of in-house lobbying a year, registration isn’t required.

And if you’re unregistered, your interactions are not reported, documented or scrutinized by government or any public watchdog. In other words, at any moment in B.C., an unknown number of unregistered lobbyists are working to influence elected officials on the sly, and it’s completely legal.

‘It’s a sad joke’: gaping holes in lobbying law

This is not just a B.C. problem.

Conacher is calling for broad changes to how Canadian governments regulate lobbying and political donations, noting that lobbying loopholes are found at the federal, provincial and territorial level across the country.

Over his 26-year career in democracy advocacy, he has observed that governments only take action on closing loopholes in the wake of scandal, and in the case of the NDP, to create the impression that the wild west days of the BC Liberals, who ruled the province from 2001-2015, are over.

But not much has really changed, says Conacher, as he reads aloud over the phone from Section 2 of B.C.’s Lobbyist Registration Act. The province’s lobbying rules do not apply to oral or written submissions made to a public office holder concerning the “enforcement, interpretation or application of any Act or regulation.” Nor do they apply to the “implementation or administration of any program, policy, directive, or guideline” by a public office holder.

“It’s a sad joke,” he says. “That almost [exempts] everything. What else is there? The biggest loopholes that allow for secret lobbying in B.C. are still in the law.”

Why do loopholes continue to exist?

Allowing unregistered lobbying opens the door to situations where hired-gun consultants, who usually have to register, can be hired and paid for “strategic advice” — but can lobby without payment.

The same goes for board members who are paid but agree to lobby for free.

Unlike the province of Quebec or City of Toronto, B.C. has not closed this loophole.

Lobbyists also aren’t required to register if a public office requests contact “for advice or comment.”

This is a recipe for corruption, Conacher says, particularly in the case of high-level government officials. Theoretically, a cabinet minister can reach out to a lobbyist and make deals in secret, yet there’s no record of it.

“The Access to Information Act doesn’t apply to minister offices, and the [B.C.] Lobbying Act does not apply to that communication either.”

The federal government eliminated this loophole 16 years ago, but it remains on the books in B.C. The question is, why do so many loopholes persist?

The Ministry of the Attorney General turned down multiple requests for an interview with David Eby, and a spokesman would not directly address questions to clarify the persistence of loopholes for unregistered lobbying.

Conacher has a disturbing explanation for why the NDP has talked tough on cleaning up lobbying, yet failed to go the full distance.

“There’s no other reason to leave the loopholes open, except that government wants secret, unethical lobbying, so they can do secret deals behind closed doors with interests they favour.”

“And they want that all to be off the record.”

Lobbying’s dodgy revolving door

It has been less than 10 years since information about lobbying even became available to the public in B.C. In 2010 the Lobbyists Registration Act, for the first time, required lobbyists to register actual or intended meetings with public officials.

There is now a publicly accessible, searchable database that provides a window into how government works, including the thousands of lobbying records of former B.C. politicians and turned advocates.

There are many familiar names. Former lands and agriculture minister Pat Bell successfully lobbied for a company seeking contract work on BC Hydro’s Site C dam and, according to LinkedIn, he currently holds board positions with an energy firm and junior mining company.

Former cabinet minister and Dawson Creek mayor Blair Lekstrom also lobbied on behalf of a business seeking Site C contracts, and among other things, has represented Chinese coal mining company HD Mining. (He was fined in 2016 for breaking lobbying rules.)

But most revolving door examples involve less familiar, former high-level bureaucrats.

For example, Karina Brino, former assistant deputy minister for the Ministry of Energy and Mines, left her job in July 2011 and by August was the president and CEO of the Mining Association of B.C., the province’s most influential mining advocacy organization (see one of her op-eds here).

Kirk Miller, after a 25-year career with the Agricultural Land Commission, including about seven as chair/CEO, turned around to lobby his former employer on behalf of landowners seeking to exclude land from the Agricultural Land Reserve.



Lobbying undermines public confidence in government

In 2017 Corporate Mapping Project researchers looked at registered lobbying in the province, and discovered that 22,000 lobbying “contacts” were made between public officials and the fossil fuel industry alone between 2010 and 2016.

They concluded that “B.C. stands out in Canada in terms of its weak regulations against corporations influencing public policy.”

Researcher and lead author Nicolas Graham said the findings were “alarming,” but told The Narwhal his research did not include unregistered lobbying.

The report also found “substantial overlap” between the top corporate political donors and the most frequent lobbyists — suggesting the two practices “work in tandem” to ensure companies with ample resources can leverage those resources to gain the ear of politicians.

According to Bennett Jones lawyer Sharon Singh negative public perception of lobbying undermines public confidence in government and casts suspicion on legitimate communications between public officials and stakeholders.

“Lobbying … generally serves an important purpose by allowing stakeholders to communicate their concerns to public officials,” Singh wrote in a 2018 blog post about B.C.’s lobbying changes.

“However, recent B.C. experience with political donation issues suggests that lobbying still suffers from negative public perception.”

Speaking with The Narwhal, Singh said the most important change brought in by the B.C. NDP has been the monthly reporting requirement.

In the past, lobbyists have only been required to list who they think they might lobby. Now lobbyists have to report monthly with details about who they specifically talked to.

The recent changes also address the need to improve lobbyist disclosure — for example, the new rules notably lower the threshold under which an in-house lobbyist has to register from 100 hours down to 50.

But many of the proposed amendments remain stuck in limbo.

A spokesperson with the Ministry of the Attorney General told The Narwhal a majority of the lobbying changes are not yet in force and provided no specifics about when they will be in place.

He said implementation will be announced via future updates to the Office of the Registrar of Lobbyists. (No such updates have been posted between August-mid and November 2019.)

‘Funneling’ and buying government access

Although B.C. banned corporate and union donations, rules still allow for individual political donations of $1225.17 (B.C. actually increased this amount from $1,200 in 2018).

Conacher told The Narwhal that everywhere in Canada where a personal donation limit persists of $1,000 or more persists there has been suspected or confirmed illegal “funneling.”

The funneling of personal political donations can work like this: a large company sends one of its executives to the door of a political party with 3,400 separate personal cheques (say $100 each) for each of its employees, telling the party that he is simply facilitating the delivery of personal donations. The party pockets the $34,000. (In reality, the company paid the donation).

In a similar way, SNC Lavalin illegally funneled almost $118,000 to the federal Liberal and Conservative parties, riding associations and candidates through its executives and employees from 2004 to 2011.

Elections Quebec recently performed an audit that found almost $13 million in likely illegally funneled donations between 2006 and 2011.

Democracy Watch is calling on Elections B.C. to do a similar audit of donations, looking for patterns that suggest multiple personal donations are connected to a company or other entity.

Dermod Travis, executive director of Victoria-based democracy advocacy group IntegrityBC, suspects funneling is occurring in British Columbia today. It should be mandatory, he says, to include details about your employer when any personal political donation is made, which would make it much easier to detect funneling.

Elections B.C. director of communications Andrew Watson told The Narwhal they have not identified any cases of “indirect political contributions,” nor have any been brought to their attention to date.

But he confirmed an audit is imminent.

“Since the law changed in 2017, we have not audited the accounts of registered political parties. We plan on doing so before the next provincial election.”

Fixing the system: onus on governments, not lobbyists

The answer to closing lobbying loopholes, according to Democracy Watch, is to reverse the onus on who has to register when lobbying takes place.

Conacher is calling for the creation of a database that records every time a government office is contacted by a person, company or entity trying to lobby. The result would be a comprehensive, searchable database of all government influencers, from an angry local constituent to a lobbyist representing a large corporation.

Database technology is now easily capable of managing a task this big, Conacher says, and government ministries and MP offices already extensively track and record when letters and contacts are received.

Travis mostly concurs.

He says B.C. should exclude normal constituent contacts with MLAs from such a database (for privacy purposes), and lobbyists and the public officials should both have to report any lobbying contact, making it easier to police and cross-check interactions.

With British Columbians waiting on the promise of the most transparent lobbying regime in the country, it remains to be seen if the province will follow through.