If the
Auditor General starts the investigation of wetlands capping as requested by
the Public Accounts Committee, then she will be acting illegally.
The Auditor
General has no authority to conduct a review requested by the Public Accounts Committee
of the House of Assembly under any provincial statute, regulation, or constitutional practise.
Section 16
of the Auditor General is explicit about the subjects that the Auditor General
may review, if requested by either the Lieutenant Governor in Council, the House of Assembly, or the Public Accounts Committee. They are:
- [matters] relating to the
financial affairs of the province or to public property, or
- inquire into and report on a person or organisation that has received financial aid from the government of the province, or in respect of which financial aid from the government of the province is sought.
In August 2019,
Crosbie asked the Public Accounts Committee of the legislature to look into why
the environment department had not issued a permit for wetland capping. Specifically, Crosbie asked for an
investigation of a “breakdown in communication that resulted in the flooding of
the Muskrat Falls reservoir in violation of an agreement between the Government
of Newfoundland and Labrador and the Innu Nation, the Nunatsiavut Government,
and the NunatuKavut Community Council to abide by the recommendations of the
Independent Expert Advisory Committee, which directed that wetland capping must
precede any such flooding. ”
There is no
way that the plain English meaning of section 16 can be stretched to cover a
“breakdown in communication” of any kind. Crosbie tried to make the issue a
financial one by noting in his letter to the Public Accounts Committee that the
government allocated $30 million for wetland capping and some it had been
spent.
But here’s
the thing: the Auditor General doesn’t get
to investigate everything involving public funds because everything in
government has to do with spending public money. In the context of the Act, the Auditor General looks at on how
government departments deliver specific programs. You need only look at the
annual reports the Auditor General issues on government departments to see what
the Auditor General is supposed to do. Department X was authorised by the House
to spend an amount of money delivering a specific program. How did they spend the money to accomplish
the purpose they had.
The AG legal
authority to investigate “a breakdown in communciation” or anything like
that. It’s very simple. Whatever happened to the promise on wetland
capping is nothing of the sort the Aug should be reviewing. They were part of
ongoing discussions between the government and three external groups. The fact government thought it would cost any
amount - if it took place - is
irrelevant.
This is not
just a matter of one persons’s interpretation of the Auditor General Act. This is precisely what the House of Assembly
voted for in 1991 when it approved the first version of the Auditor General Act.
When he
introduced the Act in the House of Assembly in 1991,
finance minister Winston Baker noted that government planned to give the
Auditor General broad powers. “The Auditor General shall call attention to
anything the Auditor General considers significant,” Baker told the House, including instances where… ‘factors or
circumstances relating to an expenditure of public money which in the opinion
of the Auditor General’ … ‘should be brought to the attention of the House of
Assembly.’"
Baker made
it clear, though, that the Auditor
General was supposed to deal with “expenditure of public money”. After all, the Auditor General, no matter
what other experience he or she might have is hired with the credentials of a
chartered accountant to address the way in which public money is accounted
for. The AG looks at what happened to
the money.
The AG is
not supposed to look at why the government spent money or, in this instance,
why it didn’t. That’s something that Baker explained in 1991 when he spoke
about a specific clause in section 12. The clause he quoted had a clarification included
in 1991 and never removed by the legislature.
The matters brought to the House’s attention “shall not be construed as
entitling the Auditor General to question the merits of policy objectives of
the Government.”
“If …any
Government… decides because of a policy objective to fund something, the
Auditor General can quite rightly point out that perhaps the funding of that
project or whatever it may be, existed and perhaps could have been done in a
better way. That is a legitimate
question [for the AG] but it is not legitimate for the Auditor General to
comment on the policy objective in Government of doing that.”
“The Auditor
General does not comment on the correctness of that particular policy of
Government. The Auditor General may comment on the financial transaction, so we
thought that had to be in there because what we do not need is an individual
out there who was not privy to any of the Cabinet discussions and the reasons
for making a policy and then all of a sudden making pronouncements on the
merits of a particular policy. We felt that the expertise of the Auditor
General would be within the domain of the expenditure of money rather that the
development of policy.”
Make no
mistake: Crosbie is right about the need
to make government account for its actions on wetland capping. That’s not a job for the Auditor General,
though. That job belongs to Ches
Crosbie. As the leader of the opposition in the House of Assembly, Ches gets paid to make the government answer
for its actions. He doesn’t get paid to fob off his responsibility onto someone
who does not have the legal authority to do it.
If Crosbie
and the members of the House Public Accounts Committee want to hold hearings
and call the Premier, the Minister of Environment, and other witnesses then
they can do just that. It might be a bit
of a stretch under the PAC’s terms of reference but it’s a lot less troubling
to have elected politicians do their job than take the Crosbie route of trying
to pawn of his job on someone else. If
Crosbie got the members of the PAC to agree to do something illegal – as he
apparently just did – then he should have no trouble getting them to do
something that is perfectly legal and absolutely appropriate, like politicians
investigating politicians in the House of Assembly as they are paid to do.
Unfortunately, Crosbie and the AG can rely on previous
examples where the Auditor General have undertaken these sorts of reviews. The most recent example took place when the
current Auditor General was the Clerk of the Executive Council. In 2016,
Dwight Ball gave the Auditor General the job of looking into the
“appropriateness of the severance benefits” paid to Ed Martin by NALCOR or under
his employment contract. Those words and
The AG’s specific task under section 16 of the Auditor General Act are in an
order-in-council numbered OC2016-071
that was approved on 29 May
2016.
That request
is bad enough in that it is outside the scope of the Auditor General’s powers
for a review under section 16. Ed Martin compounded the problem when he
accepted an inappropriate order from cabinet.
He then compounded *that* mistake by exceeding the task assigned to him.
He did not merely review the severance entitlements and determine whether or
not the amount Martin received was consistent with the terms of his
contract. The Auditor General criticised
the government for the way it dealt with Martin. The Auditor General - who had been the deputy minister of finance
at crucial times during the development of Muskrat Falls - criticised Ball in Ed Martin’s
departure when he said it had been a case of constructive dismissal. The
Auditor General had neither the authority nor the expertise to make such a
judgement. He may well have been in a
conflict of interest given his former position as deputy minister of finance.
The Auditor
General’s review of Humber
Valley Paving was similarly outside the scope of subjects the Auditor
General is legally supposed to be reviewing.
That the AG report ht the time gave political cover to government on a
controversial issue only compounded the situation in that case. This was another inappropriate action by the
former deputy minister of finance. It continues
in the same fashion of his predecessors both of whom undertook deeply flawed if
not openly partisan investigations during their terms of office.
The pattern
of shirking responsibility – as Crosbie is doing – also follows the example set
by Dwight Ball. In addressing behaviour
of cabinet ministers and members of his own caucus, Ball refused to exercise his own
responsibilities. Instead he invited an officer
of the House with no legal power or professional expertise to investigate and
make decisions about issues that were outside his mandate. Ball’s actions also
raised conflicts of interest and constitutional issues.
These improper
uses of officers of the House is similar to the tendency of bureaucrats and
politicians to use the access to information legislation for purposes for which
it was not intended. In some instances,
this has led to continued illegal practises such as redactions for which there
is no legal authority.
Two wrongs don’t
make a right and umpteen wrong acts, as in the abuse of public offices and
statutes are a cause for much deeper concern.
The best thing for the Auditor General to do is refuse the request. And if she has already accepted it, then, the
province will just continue its slide away from the rule of law.
-srbp-