Aboriginal Affairs Portfolio Evaluation

Executive Summary

1. Introduction

The overall mandate of the Aboriginal Affairs Portfolio (AAP) is to provide high quality legal services and legal policy advice in relation to Aboriginal Peoples (i.e., Indian, Métis and Inuit peoples of Canada) to the Deputy Minister and Minister of Justice, and to federal departments and agencies. The AAP also provides legal services on northern development issues within the mandate of Aboriginal Affairs and Northern Development Canada (AANDC). The evaluation of the AAP was conducted for the Department of Justice between January 2013 and June 2015. This is the first evaluation of the Portfolio and will serve as a baseline for future evaluations of the Portfolio. The evaluation covers fiscal years 2008-09 to 2012-13.

2. Methodology

The evaluation methodology consisted of (1) a literature review, (2) AAP document and data review, (3) a review of iCase data, (4) a survey of AAP legal counsel, (5) key informant interviews, (6) a review of closed litigation, legal advisory and legal policy files, and (7) five case studies. Triangulation was used to verify and validate findings obtained through these multiple lines of evidence.

3. Findings

3.1. Relevance

Continued Need.
The AAP is highly relevant. Thousands of files are opened each year where AANDC is either the primary or secondary client. Litigation files in particular demonstrate continued growth. Value-added services provided by the AAP in response to need are expansive and include expertise pertaining to duty to consult, Specific Claims Tribunal work, interpretation, legal opinions, legal risk assessments, and judicial reviews. Legal services offered by the AAP address increasingly complex federal issues concerning Aboriginal Peoples and continue to result in major developments in Aboriginal law and legal policy, possibly the single largest growth sector in the legal industry in the area of public law. Existing and projected areas of legal work concern the Indian Residential Schools Settlement Agreement, Aboriginal children’s experiences outside of Indian Residential Schools, Specific Claims Action Plan, the Federal Framework for Economic Development, the Federal Comprehensive Land Claims Policy, Treaty and Self-government Negotiations, Aboriginal Rights and Title, and Consultation and Accommodation.
Alignment with Government Priorities.
The AAP purposely aligns its activities with federal government priorities and departmental strategic outcomes including supporting the AANDC Minister’s long and short-term Aboriginal agenda (with particular emphasis on supporting the Aboriginal Economic Development Framework), the Justice Minister’s and Deputy Minister’s priorities with respect to Aboriginal legal issues, as well as managing key horizontal issues and providing whole of government advice. Over the five-year evaluation period, AAP suitably re-calibrated its activities in response to changing priorities and strategic outcomes. The Portfolio remained aware of high priority areas and demonstrated a practical understanding of what services were required by clients, such as those pertaining to human rights and SCT work and those addressing program and policy modernization. Highly collaborative approaches, good working relationships, and solid in-house expertise enabled the Portfolio to be responsive to changes in federal government priorities and departmental strategic outcomes.
Alignment with Federal Roles and Responsibilities.
The AAP supports the Minister in fulfilling his duties as Minister of Justice and Attorney General of Canada under the Department of Justice Act and other relevant federal statutes, as well as the Government of Canada’s long- and short-term agenda with respect to Aboriginal Peoples. Alignment of the Portfolio’s legal services with the Department of Justice Act is achieved through the Portfolio’s successful management of cross-cutting legal issues and the provision of legal advisory and litigation services that assist client departments and agencies in the management of legal risk, being ever mindful of its obligations to protect the Crown.

3.2. Portfolio Design

Clarity of the Mandate and Objectives of the AAP.
While roles and responsibilities in connection with specific units of the AAP were clear and appropriate towards the achievement of the mandate and objectives of the Portfolio, responsibilities of various groups in providing litigation support were perceived by legal counsel to be somewhat unclear. The evaluation found differing views with respect to the functioning of AAP governance functions and mechanisms. While practice and working groups and some committees were perceived as supporting the achievement of AAP objectives, others were perceived to not function as well as intended.
AAP Change Management Plan’s Ability to Support the Achievement of the AAP Mandate.
During the evaluation period the AAP change management plan was implemented, including a Modernization Strategy that involved a major reorganization of Headquarters functions and significant reductions in the cost structure of these functions. Multiple lines of evidence suggest that the AAP mandate continued to be supported; although some duplication of roles and responsibilities in the delivery of high quality legal services was observed.
AAP Performance Monitoring and Evaluation Capacity.
AAP continues to engage in various efforts that guide and support ongoing quality improvement and performance measurement. A number of client committees, Justice working groups, Legal Services Units (LSUs), practice groups and interdepartmental committees have been established to sustain such efforts. The implementation of the new business analytic model/evidence-based approach to identifying key priorities, as well as peer reviews and other committees also ensure ongoing quality assurance and consistency in legal positioning and reporting practices.

3.3. Performance

Production of High-Quality Legal Services Related to Aboriginal Law, Legal Policy and Northern Development Legal Issues.
Multiple lines of evidence indicate that the services of the Portfolio were well coordinated, useful, timely, highly responsive, and appropriate to the needs of clients and their policy and program objectives. The services provided by the AAP during the evaluation period covered a broad range of significant legal issues, including those pertaining to treaty land entitlement, specific claims, fiduciary duty, and consultation and accommodation. Importantly, the majority of files that were closed during the evaluation period achieved Crown success.Footnote 1
Enhanced Capacity to Deliver Legal Services Related to Aboriginal Law, Legal Policy and Northern Development Legal Issues in an Integrated/Consistent and Responsive Manner.
By 2012-13, several AAP initiatives were underway towards the further attainment of integration/consistency and responsiveness of legal services moving forward. During fiscal year 2012-13, the Aboriginal Law Centre (ALC) was established to ensure consistency of legal advice and the AAP’s continued ability to provide responsive services. As a result of AAP efforts, effective consultations across a range of relevant stakeholders, briefing processes, and how risks are conveyed and approaches proposed through effective dialogue, certain language is being developed and applied across similar cases to ensure consistency of legal positions. Established client committees, working groups or practice groups and interdepartmental committees, as well as cross country calls, peer reviews, template opinions, and guidelines further help to ensure the integrated delivery of legal services and that legal counsel speak with one voice. In general the evaluation found that legal counsel had the appropriate resources to conduct their work, although a few areas for improvement were noted in connection with access to tools, resources and processes.
Enhanced Awareness and Understanding within the Federal Government of Issues, Options, and Approaches to Aboriginal Law, Legal Policy and Northern Development Legal Issues.
The AAP has been successful at increasing awareness and understanding of nuanced legal issues, innovative options, and approaches to Aboriginal law, legal policy and northern development legal issues horizontally across government. Furthermore, the AAP is continually relied upon as the expert source of legal advice across a broad spectrum of legal issues. Areas of enhanced awareness and understanding include duty to consult in relation to comprehensive funding arrangements, breach of treaty and fiduciary duty with respect to surrender, and applicability of the Specific Claims Process. The Portfolio has several working groups, training and professional development activities and products to assist with information dissemination and knowledge exchange. Particularly useful mechanisms include access to supervisors/mentors, the AANDC LSU, practice or working groups and regional Aboriginal Law Sections. Moving forward, more job shadowing/training opportunities in specialized legal areas are required to promote further development of legal practice skills, and to support enhanced awareness and understanding of issues, options, approaches to Aboriginal law, legal policy, and northern development legal issues.
AAP’s Contribution to Aboriginal Law and Legal Policy Issues and Claims Being Effectively Addressed, Litigated and Resolved across Government
The Portfolio has contributed in important ways to Aboriginal law and legal policy issues and claims being effectively addressed, litigated and resolved across government. Overall, clients are satisfied with the rate of settlement that has been achieved. Most cases settled out of court involve attempts at dispute resolution, especially in relation to medium risk and low complexity files, and attempts at dispute resolution have increased over time. Clients are regularly encouraged to settle disputes and feel that the AAP is directly responsible in the successful conclusions being generated and negotiations taking place around reconciliation principles.
AAP’s Contribution to the Ability of Government Departments and Agencies to Better Manage Their Legal Risks on Aboriginal Issues.
AAP is engaged in concerted efforts to assist government departments and agencies in their ability to better understand, manage and mitigate their legal risks and has effective practices in place to support the identification of these. Legal risk is regularly communicated to client departments and agencies through formal and informal means (for instance through written briefings, lawyer explanations and information sessions), and as a result clients are able to better manage/mitigate legal risks on a variety of Aboriginal issues.
The Appropriateness of AAP’s Resource Utilization in Relation to the Resources Planned and Allocated to Activities and Outputs Produced and Progress Toward Expected Outcomes.
Multiple lines of evidence indicate that AAP files are assigned based on expertise to maximize efficiency in the delivery of legal services while maintaining quality. Over the course of the evaluation period, several discussions, reviews and activities took place that aimed to enhance AAP resource utilization efficiencies. Average hours per file where AANDC was either the primary or the secondary Client steadily decreased over time, as did the percentage of time spent by legal counsel and paralegals on low complexity advisory files and low-risk litigation files. The highest percentage of time spent on litigation files was spent by junior legal counsel (relative to more senior counsel or paralegals), regardless of level of legal complexity or risk.

In general, the evaluation found that the Portfolio had engaged in comprehensive efforts to ensure its continued capacity to provide national strategic coordination and legal risk management, and to deliver appropriate/sufficient legal services given existing and future demand for such services, including the implementation of a Professional Development Integration Plan and employment engagement strategies.

Overall, the funding model being utilized by the AAP appears to be appropriate and sufficient to meet current demand for legal services. However, challenges were noted, especially in connection with legal advisory services, and the fact that the model is not conducive to mentoring or job shadowing opportunities. There is also the sense that further reductions in the Portfolio’s funding will negatively impact its ability to meet demand.