The Yukon legislature is considering a bill that, if passed, will create one of the strongest lobbying law regimes in the country. This bill includes a unique revolving door prohibition that would stop consultant lobbyists from becoming Yukon public servants for six months after they cease lobbying.
On October 4, 2018, Sandy Silver, Yukon's premier, introduced the Lobbyists Registration Act in the legislative assembly for its first reading. If passed, this bill will create a lobbyist registration system, making Yukon one of the last Canadian provincial or territorial jurisdictions to adopt a lobbying registration law.
If passed, it is expected that this lobbying bill will become law sometime in 2019. Companies doing business in Yukon, including in extractive industries that require frequent approvals from government or those seeking government contracts, should take notice.
Proposed Features of the New Lobbying Registration Regime
As with most other Canadian lobbying laws, Yukon's lobbying legislation divides lobbyists into two camps: in-house lobbyists working for organizations, and consultant lobbyists.
Lobbying activity requiring registration would involve any communication by lobbyists with public office holders, including via grassroots campaigns, in an attempt to influence:
- The development of legislation, including legislative proposals and bills before the Yukon legislature;
- The making and amendment of regulations, or the development or amendment of any Yukon government policy or program;
- Cabinet decisions to sell government assets or privatize services;
- The awarding of grants and contributions; and
- The awarding of Yukon government contracts.
Consultant lobbyists must also register any attempt to arrange a meeting between a public office holder and any other person. This requirement does not extend to in-house lobbyists.
Public office holders to whom the Act would apply include: members of the Legislative Assembly; employees of the cabinet; employees of MLA caucuses; Yukon public servants; and anyone else to be identified in forthcoming regulations.
Notable Features of Yukon's Proposed Lobbying Law
Notable features of the proposed Yukon lobbyist registration scheme include:
- After ceasing to lobby, consultant lobbyists are prohibited from becoming employees of the Yukon public service for six months. This change may reflect a concern that consultant lobbyists could be influenced by public servants with the promise of government jobs. Such a policy consideration has never been reflected in Canadian lobbying law before. This prohibition will limit the career choices of consultant lobbyists who may wish to transition to the Yukon public sector.
- In-house lobbyists are only required to register once the lobbying activities of their organization (cumulatively across the organization for all employees) reaches 20 hours in a year. It is unclear what will be included in the calculation of this threshold.
- For in-house lobbyists, the "person responsible" for the organization must register for all lobbyists connected to the organization. In most cases, this would be an organization's chief executive officer.
- There is a six-month cooling-off period for former public office holders after they leave office, during which they cannot lobby as consultant lobbyists. However, there is no corresponding prohibition on former public office holders from becoming in-house lobbyists. A situation could arise then, where former public office holders could be hired by an organization to lobby on a full-time basis, starting the day after leaving office.
Penalties and Enforcement
Under the Yukon legislation, like other Canadian lobbying legislation, it is an offence to fail to submit a return when required to do so and an offence to fail to submit a return on time. For companies, the "person responsible", in most cases the CEO, will be held responsible under the law.
Among other offences, it is also an offence to submit a false return, and an offence for lobbyists to knowingly put a public office holder in "a position of real or potential" conflict of interest in the course of lobbying. Prosecutions cannot take place once two years have passed since the alleged conduct.
Penalties for offences under Yukon's lobbying legislation include a fine of up to $25,000 for the first offence, and a fine of up to $100,000 for each subsequent offence. The Yukon Conflict of Interest Commissioner can also impose a two-year lobbying ban and publish the name of anyone convicted of an offence, along with the nature of the conviction.
Implications for Businesses Engaging with Yukon's Public Sector
If passed, this bill will impose new legal obligations on those who do business with Yukon's public sector. Businesses seeking contracts with the Yukon government, including those attempting to sell their services, may have to register. Likewise, businesses, including those in the extractive industry, seeking approvals from government or to influence Yukon policies or programs, may find themselves subject to registration requirements.
The penalties for not meeting these requirements can be severe. It is important for all those who do business in Yukon to understand this shifting landscape in order to avoid potential liability and to mitigate reputational risk. Considering that CEOs themselves could be personally liable, this provides added incentive for all businesses to take notice.
Businesses and organizations need due-diligence measures in place to satisfy the legal obligations of their CEOs. Failure to file a registration that is accurate, complete and timely is a strict liability offence. Each company or organization needs an internal mechanism to track communications with government officials by employees, officers and directors, and should have a corporate policy on dealings with public office holders.
Fasken offers a full range of lobbying-law compliance services, including compliance audits and lobbyist registration support.
In addition to a potential fine (on conviction) and the possibility of a temporary lobbying ban, contravention of the Yukon's new lobbying law, if passed, could be a matter of public record and could cause significant reputational damage.
Any company, organization or individual dealing with Yukon's public sector should take concrete measures to ensure compliance with lobbying law.
Please contact the authors, or any member of the our lobbying-law compliance team, for more information on the subject of this bulletin.
 Prince Edward Island's Lobbyist Registration Act received Royal Assent in December 2017, and will be in force as of April 2019. At present, Northwest Territories and Nunavut do not have lobbying laws in place.
 Canadian lobbying regulators include different activities in similar calculi, such as preparation to lobby or travel to lobby. The British Columbia regulator applies a particularly broad interpretation of its threshold for registrable activity. See: Guy Giorno and Matthew Welch, "New Interpretation of Lobbyists Registration Act means more Companies and Associations are Subject to British Columbia Lobbyist Registration Requirement" (August 2018).