Register Before You Lobby in N.B. under Lobbyists' Registration Act
April 5, 2017
By Richard Scott, QC, Former Lawyer at McInnes Cooper
Note: Consultants who were already lobbying and in-house lobbyists already employed by an organization when the new Act took effect were originally required to register by July 1, 2017; on June 29, 2017, the N.B. Integrity Commissioner extended the registration deadline to October 1, 2017.
The new N.B. Lobbyists’ Registration Act took effect April 1, 2017. The Act defines who a lobbyist is, what activities constitute “lobbying”, requires “lobbyists” to submit returns to the Province – and makes failure to comply with the Act an offence. If you are caught by the definition of “lobbyist” under the new Act, register now; if you’re using a “lobbyist” in N.B., make sure you use a registered one.
Here’s who has to register under the new Act, what activities constitute “lobbying”, and when, how and why to register.
Who. Your business card title doesn’t have to be “lobbyist” for this to apply. The Act creates and covers two broad categories of “lobbyist”:
- Consultant Lobbyist. An individual who is remunerated (financially or with other benefits) to undertake “lobbying” activities on behalf of a client.
- In-House Lobbyist. An employee, including an officer who is compensated for the performance of their duties, who: spends (or intends to spend) 20% or more of their time in a three-month period undertaking “lobbying” activities for their employer; or such an employee who collectively with other employees spends (or intends to spend) the equivalent to 20% or more of one full-time employee’s time in a three-month period lobbying. Where the “lobbyist’s” employer is a corporation, the time spent must take into account any lobbying on behalf of any of the corporation’s subsidiaries or its parent.
The Act does, however, carve out some specific kinds of advocacy, for example: communications regarding public proceedings, enforcement or administrative actions; requests from a public office holder for advice or comment on one of these; personal matters of a constituent; and trade union talks for collective agreements or representation of a member/former member. In addition, those in government aren’t generally caught by the Act’s registration and return requirements.
What. The Act defines “lobbying” as communicating with a public office holder in an attempt to influence any one or more of the following: legislative development; public bills/resolutions of the Legislative Assembly; regulations; policy; cabinet decisions regarding the award of government contracts for goods and services; cabinet or ministerial decisions to have the private sector provide government goods or services; and awarding of government grants, contribution, or other financial interests. For consultant lobbyists, arranging meetings with a public office holder, and communicating with a public office holder to influence the awarding of a government contract also constitute “lobbying”.
When. Consultant lobbyists must file a return within 15 days after commencing their lobbying activities for a client. In-house lobbyists employed by a person or partnership other than an “organization” (generally a not-for-profit) must file a return within two months after the day on which they become an in-house lobbyist. If an organization employs the in-house lobbyists, the organization’s senior officer is responsible to file the return within two months after the day on which the employee became an in-house lobbyist for the organization. Consultants who were already lobbying and in-house lobbyists already employed by an organization when the new Act took effect get a three month grace period.
How. Lobbyists required to register under the new Act must open an online account with Service New Brunswick to submit the returns documenting their lobbying activities as the Act requires. The Registry will be available for public viewing on July 1, 2017.
Why. A “lobbyists” failure to comply with the new Act, including submitting returns, is an offence for which the Province can impose fines of up to $25,000 for a first offence and up to $100,000 for subsequent offences. And while the offence is that of the lobbyist, those who use an unregistered lobbyist presumably don’t wish their efforts to be tainted.
Please contact your McInnes Cooper lawyer or any member of the Energy & Natural Resources Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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