Aboriginal Affairs Portfolio Evaluation

5. Conclusions, Recommendations and Management Response

This section of the report presents integrated conclusions based on the findings presented in Section 4. The information is structured along the main evaluation issues and questions.

Relevance

Is there a continued need for the AAP legal services?

The AAP offers specialized legal advisory and direct litigation services to federal client departments and agencies in the provision of high-quality legal services and legal policy advice in relation to Aboriginal Peoples to the Deputy Minister and Minister of Justice Canada and federal departments and agencies. It also provides high-quality legal services on northern development legal issues within the mandate of AANDC. The Portfolio ensures that federal legal policy, legal positions and advice in the field of Aboriginal law, as well as AANDC-related northern development legal issues are consistent and integrated across the federal government, contribute to the resolution of Aboriginal legal issues and claims, and to the development of Aboriginal legal policy and national law practice management.

To this end, thousands of files are opened each year where AANDC is either the primary or secondary client. Litigation files in particular demonstrate continued growth. Value-add services provided by the AAP in response to need are expansive and include expertise pertaining to duty to consult, SCT 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 risk 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.

Does the delivery of legal services by the AAP continue to respond to federal government priorities and departmental strategic outcomes?

The Portfolio purposely aligns its activities with federal government priorities and departmental strategic outcomes, including supporting the AANDC’s Minister’s long and short-term Aboriginal agenda (with particular emphasis on supporting the Aboriginal Economic Development Framework), and the Justice Minister’s and Deputy Minister’s priorities with respect to Aboriginal issues, and 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, for instance those pertaining to human rights and SCT work and that addressed program and policy on modernization. Highly collaborative approaches, good working relationships, and solid in-house expertise enable the Portfolio to better respond to changes in federal government priorities and departmental strategic outcomes.

Does the provision of legal services by the AAP align 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 GOC’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 its 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.

Are the mandate and objectives of the AAP clear?

The overall mandate of the AAP is to provide high-quality legal services and legal policy advice in relation to Aboriginal Peoples to the Deputy Minister and Minister of Justice Canada, and to federal departments and agencies. The AAP mandate also includes providing high-quality legal services on northern development legal issues within the mandate of AANDC; among the 34 departments and agencies delivering Aboriginal and northern programs and services, AANDC is the primary recipient of AAP’s legal services.

Responsibilities of the AAP as a whole in providing litigation support were perceived by legal counsel to remain somewhat unclear, 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. The evaluation found differing views with respect to the functioning of the governance/organizational structures of the AAP. While practice and working groups and some committees were perceived as supporting the achievement of AAP’s objectives, others were perceived to be redundant or not functioning as well as intended.

Has the AAP change management plan continued 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 HQ functions and significant reductions in the cost structure of these functions. Multiple lines of evidence suggest that the AAP mandate continued to be supported; still, some duplication of roles/responsibilities in the delivery of high-quality legal services was observed during the evaluation period. This duplication indicates an opportunity for greater efficiency in connection with the role of the ALC in the provision of litigation support and advice to litigation counsel, and in relation to litigation management. An opportunity also exists for drawing a clearer distinction between the role of HQ and regional counsel when working on similar files. It is important to note that the absence of junior level staff, paralegals and administrative resources introduces workload pressures that may interfere with the capacity to deliver high-quality legal services.

Recommendation 1: It is recommended that roles and responsibilities be clarified for the ALC, the LSU and regional counsel involved in litigation support and management.

Management Response:

Agreed.

Near the end of the evaluation cycle, the Portfolio underwent a significant reorganization, including the creation of the ALC in order to manage and deliver legal services with greater efficiency, and clarifying the new roles and responsibilities within the AAP has been a priority.

More recently, with the implementation of the Legal Services Review measure entitled a “Unified Approach to Aboriginal Law Services Delivery”, AAP has taken a number of actions, which helps clarify roles and responsibilities including the following:

Is there sufficient capacity within AAP to support ongoing quality improvement, performance measurement and evaluation?

AAP continues to engage in various efforts that guide and support ongoing quality improvement and performance measurement. A number of client committees, working groups or 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, peer reviews and other committees has also ensured ongoing quality assurance and consistency in legal positioning and reporting practices. An opportunity exists for enhancing data collection methods and systems, such as the consistency with which data are entered into iCase and in the type of information and level of detail being stored in the system.

Performance

Has the AAP produced high-quality legal services related to Aboriginal law, legal policy and northern development legal issues?

The AAP continues to meet its mandate by providing high-quality legal services, defined by the Department of Justice as being accurate in law, consistent and coordinated across the Department of Justice Canada, able to meet/exceed established client service standards for timeliness, responsiveness and usefulness; and consistent with the Hallmarks of Well-drafted Acts and Regulations with respect to legislative services.

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 (86%) that were closed during the evaluation period achieved Crown success.

Moving forward, areas for opportunity exist in enhancing access to specific information, including up-do-date legal opinions and risk assessments, case theories, draft pleadings, Deskbooks and access to specialized libraries for research purposes.

Is the AAP contributing to enhanced capacity to deliver legal services related to Aboriginal law, legal policy and northern development legal issues in an integrated/consistent and responsive manner?

The AAP is headed by the Assistant Deputy Attorney General who has functional responsibility for Aboriginal matters within the Department of Justice to ensure the consistency of Aboriginal policy and practices throughout all federal government departments.

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 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 counsel have the appropriate resources to conduct their work, although a few areas for improvement were noted in connection with existing AAP tools, resources and processes. Future considerations include more enhanced and timelier access to critical tools and resources in both official languages that are current, as well as a more coordinated effort across the AAP as a whole.

Recommendation 2: It is recommended that the tools and resources available to AAP counsel be examined to determine current gaps and to explore cost-effective ways of bridging those gaps.

Management Response:

Agreed.

The AAP recognizes the need for a continuously updated, integrated and comprehensive set of information tools and resources in a wide variety of formats to aid in improving the quality, efficiency and completeness of legal services. Since the end of the evaluation cycle, AAP has implemented a number of tools and resources to assist counsels in the conduct of their work. These include (not exhaustive list):

  1. Aboriginal Legal Issue Backgrounders on at least 17 different topics – concise summaries of the law and current federal legal positions on a broad range of aboriginal legal issues. Development and updating of these resources are ongoing.
  2. Legal Issue Federal Position Guides on at least 6 topics– in depth discussion papers and guides on the federal approach to key and current aboriginal legal issues. Development and updating of these resources are ongoing.
  3. Templates for Legal Counsel – standardized and recommended language and structure for frequently drafted documents. Completed templates include:
    • Settlement Agreements
    • Legal Risk Assessments
    • Duty to Consult Legal Opinions
  4. Litigation Settlement Process Desk Book – a reference work for counsel which contains practice directives, best practices information, templates and other tools for facilitating the settlement process.
  5. Legal Risk Assessment Best Practices Guide - a reference work for counsel which contains practice directives, best practices information, templates and other tools for preparing legal risk assessments.
  6. Consultation Newsletter - a bi-monthly report on contextual developments and litigation related to Crown consultations obligations.
  7. Consultation Practice Group - a forum for learning, information sharing, and innovation. The Practice Group includes approximately 150 members and it meets regularly, alternating agendas between information sharing and addressing specific issues/topics.
  8. Protocol of engagement with INAC, which streamlines and clarifies eight components of our litigation practice:
    • Case intake;
    • Case plans;
    • Research plans;
    • Document production process – streamlines through a best practices tool designed to reduce the effort spent on document production activities;
    • Instructions – to reduce effort spent on various aspects of obtaining instructions, a protocol for Streamlined Instructions for Procedural Matters was developed;
    • Risk assessment – streamlining of the development, review and approval process;
    • Settlement mandates; and
    • Contracting for experts.
  9. SCT Efficiencies Report - a practice directive on roles and responsibilities, governance, and issues of settlement to improve efficiencies and effectiveness in the coordination and conduct of the SCT practice area.

Is the AAP contributing to enhanced awareness and understanding within the federal government of issues, options, 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, as well as approaches to Aboriginal law, legal policy and northern development legal issues horizontally across government, and 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 Working Groups and regional offices/Aboriginal Law Sections. Moving forward, more job shadowing/training opportunities in specialized legal areas are required to promote further development of legal practice skills, support enhanced awareness and understanding of issues, options, approaches to Aboriginal law, legal policy, and northern development legal issues.

Recommendation 3: It is recommended that the training needs of AAP counsel be examined to determine current gaps and to explore cost-effective ways of offering access to training.

Management Response:

Agreed.

Professional Development and Training is a high priority for the AAP and, as such, the Portfolio introduced in 2012-13 a professional development and training program (that compliments the Department’s Professional Development Directorate) identifying and addressing common learning needs across the AAP that are consistent with the Portfolio’s business goals and strategic objectives, avoiding duplication of effort, and sharing best practices. The program is project managed with a Learning Framework that is client focused, innovative, with a view to building a flexible and successful workforce.

The AAP is committed to supporting the ongoing training and development of its employees to ensure our workforce is highly skilled in areas of law most relevant and of highest priority, and to position us to deliver high-quality legal services consistent with the Department’s vision for Canada’s Legal Team.

Surveys are conducted at the end of each session and at the end of the fiscal year, to ensure that any gaps are being addressed either through the integrated professional development program, or otherwise.

In addition, in 2015-16, the Portfolio made significant investments in training and held/will hold by the end of the fiscal year 10 short training sessions (normally 1.5 hours long), as well as two 2-days training workshop on the following key areas of our practice:

When feasible, short training sessions are offered online through WebEx. We also inform our legal staff of free relevant podcasts through our SharePoint site

Is the AAP contributing 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 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 implicated in the successful conclusions being generated and negotiations taking place around reconciliation principles.

Is the AAP contributing 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 (and the re-articulation of legal risk as required over the life of the file).

While legal counsel are fully committed to improving legal risk management moving forward, greater effort is needed to identify and assess legal risks when a file is opened, especially in connection with advisory files, and in the re-assessment of legal risks as required following the initial risk assessment. These concerns will likely be addressed through the implementation of the departmental Legal Risk Management Framework, which is now mandatory.

Efficiency and Economy

Has the AAP resource utilization been appropriate, 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. In general, the Portfolio manages its work by attempting to align resources with level of legal risk, complexity and impact, a process that directly aligns with the Law Practice Model. The Model limits staffing of senior complement and LA2A positions and enhances recruitment at the LA1 level.

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 legal services appropriate/sufficient, given existing and future demand for legal 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 the current demand for legal services. However, several 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. Concern was also expressed in the AAP’s ability to maintain suitable responsiveness to future demands given current employee capacity constraints in absence of “backfilling”, and anticipated requests for legal services following recent high profile Supreme Court of Canada decisions. Additional human resources may be required moving forward (e.g., paralegals and assistants), as well as enhanced succession planning efforts, and mentorship, training, management and professional development opportunities.