Shared governance organizations and registrable activities under the Lobbying Act

Purpose of advisory opinion

This advisory opinion is issued by the Commissioner of Lobbying under the authority of subsection 10(1) of the Lobbying Act. Its purpose is to provide guidance for lobbyists with respect to shared governance organizations and registrable activities under the Lobbying Act.

Commissioner's opinion

Communication between officials employed in a shared governance organization and federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable activity.

Background

On November 13, 2009 the Clerk of the Privy Council was asked by the Prime Minister to convey the following governmental expectations concerning the engagement of consultant lobbyists to communicate with Crown corporations, departmental corporations and certain shared governance organizations:

"Crown corporations, departmental corporations and shared governance organizations for which the Government of Canada has direct responsibilities or which expend funds reported as Government assets in the Public Accounts of Canada should not engage consultant lobbyists to communicate with the Government of Canada. Communication between these organizations and the Government about their mandates, operations, funding and other matters are a regular, ongoing aspect of government operations. The Government believes that accountability and the public interest are best served when its relationship with these organizations is conducted via candid and direct communications between corporate officers and responsible Ministers and their officials, and that the use of consultant lobbyists for this purpose is unnecessary and an inappropriate use of public funds." (Emphasis added)

See the appendix for a list of shared governance organizations that received this guidance from the Clerk.

Note: Three criteria were used for deciding whether a shared governance organization was included in the Clerk's guidance. They are as follows:

1. Does the federal government appoint the majority of the directors of the organization (as with a Crown corporation);
2. Does the Minister responsible for the organization have an explicit statutory authority to direct the operations of the organization (i.e., a residual power of operational control); and
3. Are the assets of the organization reported as being under the control of the Government of Canada, under the public accounts of Canada?

Shared governance organizations include corporate entities without share capital for which Canada, either directly or through a Crown corporation, has a right, pursuant to statute, articles of incorporation, letters patent, by-law or any contractual agreement (including funding or contribution agreements) to appoint or nominate one or more voting members to the governing body. There are some foundations and organizations that have been established by intergovernmental agreements or agreements with First Nations or Aboriginal organizations that meet the definition of a shared-governance organization.

Following the letter sent by the Clerk, the Commissioner has considered the application of the registration requirements of the Lobbying Act with respect to shared governance organizations. The Commissioner takes the view that communication between officials of a shared governance organization and federal public office holders concerning the mandate, operations and funding of the shared governance organization, and other related matters, does not fall within the definition of registrable lobbying activity under the Lobbying Act. As a result, shared governance organizations are not required to register employees as in-house lobbyists.

Karen E. Shepherd
Commissioner of Lobbying
March 2010

Appendix

List of shared governance organizations identified by the clerk of the Privy Council

(November 17, 2009)