Aboriginal Affairs Portfolio Evaluation
2. Profile of the Aboriginal Affairs Portfolio (AAP)
The AAP is one of six portfolios within Justice that offers specialized legal services to federal client departments and agencies. In supporting the Minister of Justice’s priorities with respect to Aboriginal issues, the work of the AAP contributes to the following Strategic Outcomes of the Department of Justice:
- A fair, relevant and accessible Canadian justice system; and
- A federal government that is supported by high-quality legal services.Footnote 3
The AAP supports the Minister of Justice and the Attorney General of Canada in accordance with the responsibilities set forth in the Department of Justice Act, and within other relevant Acts of Parliament.
The AAP mandate also includes providing high-quality legal services on northern development 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.
The specific objectives of the AAP are to:
- Ensure 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
- Contribute to the development of Aboriginal legal policy and national law practice management.
The AAP supports the Government of Canada’s (GOC’s) long- and short-term policy agenda with respect to Aboriginal peoples, by strategically managing key cross-cutting legal issues.Footnote 4
2.1.1. Organizational Structure of the AAP
Recently, the AAP participated in the Department of Justice Modernization Strategy, which included a review of its core functions, particularly in relation to its HQ functions supporting the national practice of Aboriginal law. Implementation of this strategy has resulted in a major reorganization of HQ functions with significant reductions in the cost structure of these functions.
As can be seen in the following organizational charts (Figure 1 and Figure 2), the Aboriginal Law and Strategic Policy section and the Resolution Branch were replaced with the Aboriginal Law Centre (ALC). This change occurred during fiscal year 2012-13. Changes to business processes designed to support the Modernization Strategy were refined to ensure essential core capacity was maintained, but at a significantly lower cost than under previous approaches. For this reason the AAP’s design was examined under the current evaluation.
Figure 1: Former Organizational Structure
Figure 1: Former Organizational Structure - Text equivalent
Figure 1 describes the former organizational structure of the Aboriginal Affairs Portfolio (Portfolio). The head of the Portfolio is the Assistant Deputy Attorney General (ADAG). There is functional reporting between the ADAG and the Regional Offices. Reporting to the ADAG is the Deputy ADAG, who oversees the Law Practice Management group. There are also Senior General Counsel, General Counsel Senior Advisors who report directly to the ADAG.
There are also four groups within the Portfolio whose head would report to the ADAG. The first group is the Aboriginal Law and Strategic Policy Section. This Section is responsible for Policy and Priorities and Legal Advisory work.
The second group is the Department of Indian and Northern Affairs Canada Legal Service Unit. This group has four sections aligned to the Department’s structure. The first is Negotiations, Northern Affairs, and Federal Interlocutor. The second is Operations and Programs. The third is Specific Claims. The fourth is the Treaty and Aboriginal Government Negotiations West.
The third group of the Portfolio is the Strategic Planning and Business Management Section. This group provides Business Support Services including Finance, Recoveries and Client Negotiations, Administration, Integrated Planning and Human Resources. This group also provides Information Services.
The fourth group within the Portfolio is the Resolution Branch. This Branch has four sections, including: Aboriginal Children’s Issues; Historic Claims and Modern Operations; Section 35; and Resolution Strategies and Priorities.
Figure 2: Current Organizational Structure (effective November 2012):
Figure 2: Current Organizational Structure (effective November 2012) - Text equivalent
Figure 2 describes the current organizational structure of the Aboriginal Affairs Portfolio (Portfolio). The head of the Portfolio is the Assistant Deputy Attorney General (ADAG). There is functional direction between the ADAG and the Aboriginal Law Sections in the Regional Offices. Reporting to the ADAG is the Deputy ADAG, a Senior General Counsel, and General Counsel Senior Advisors.
There are also three groups within the Portfolio whose head would report to the ADAG. The first group is the Aboriginal Law Centre. This group is responsible for Inventory and Trends, Litigation and Legal Risk Management and Business Intelligence.
The second group is the Department of Aboriginal Affairs and Northern Development Canada Legal Service Unit. This group has five sections aligned to the Department’s structure. The first is Negotiations and Northern Affairs. The second is Operations and Programs. The third is Specific Claims. The fourth is Aboriginal Children’s Issues. The fifth is Treaties and Aboriginal Government Negotiations West and Specific Claims in British Columbia and Yukon Territory.
The third group of the Portfolio is the Strategic Planning and Business Management Unit.
2.1.2. Governance Structure of the AAP
The AAP is headed by the Assistant Deputy Attorney General (ADAG) who reports to the Associate Deputy Minister of Justice. Two strategic-level committees oversee the AAP: the AAP Management Committee; and the Law and Policy Committee. In addition, the ALC Expert Advisory Group plays a number of important strategic and leadership functions to enable the AAP to fulfill its mandate. Ad-hoc working groups and committees are also struck as needed to help govern specific issues.
The AAP Management and the Law and Policy committees as well as the ALC Expert Advisory Group are described in further detail below:
- The AAP Management Committee provides a forum for Portfolio Direct Report Managers to discuss, plan and make decisions on Portfolio-wide operations and management issues related to finance, human resources, administration and information management. The Committee also meets to share best practices that support the effective use of Portfolio resources, and where partnership-based approaches to Portfolio challenges can be developed. Membership on the Committee includes the ADAG, Deputy ADAG and Direct Reports to the ADAG, including the Business Director. Broader meetings include the Aboriginal Law Section Regional Directors. The AAP Management Committee meets every month.
- The Law and Policy Committee is the decision-making body that provides the ADAG with a senior forum for discussion, making decisions or recommendations, when appropriate, regarding the legal and legal policy orientation of the Portfolio. Its mandate is to inform the ADAG with respect to key legal issues, significant ongoing files in the Portfolio with cross-cutting issues, and Supreme Court of Canada matters. The Committee acts as an internal mechanism for substantive legal matters that help to shape definitive legal positions for both advisory and litigation files.Footnote 5 Membership includes the ADAG, the Deputy ADAG, senior practitioners recognized for their expertise in Aboriginal law, two representatives from the regions (appointed for two years on a rotational basis), one representative with training in Civil Law, and the Secretary of the Committee. This committee meets monthly (as well as on an ad hoc basis as appropriate).
- The ALC Expert Advisory Group is comprised of a diverse and national group of senior advisors, litigators and advisory lawyers, including civil law representation, who work with the Senior General Counsel/Director General (SGC/DG), and through the SGC/DG in consultation with ALC senior management to perform several functions. These include: early identification of emerging priorities, and the provision of a feedback loop on how existing priorities are unfolding/developing; reinforcement of the distinction between priority work relating to high risk and work relating to important but more standard matters; guidance on how ALC’s work on priority issues could bear upon key decisions in the courts and central agencies, and coordination of the flow of work through regional committees, Law and Policy, client committees, and other departmental and government structures; representation of the ALC in strategic discussions with client departments regarding key high-risk priorities; examination of legal work prepared by the ALC on priority issues and advice to the SGC/DG in this regard; contribution to the role of the ALC through observation of the effectiveness of the priority approaches; and leadership in helping the ALC implement its mandate.
In addition to committees and working groups, the AAP has implemented several vehicles for communication and collaboration within the AAP, with AANDC and other departments and agencies. Quarterly AAP Senior Management Meetings address portfolio-wide legal and management issues, including short- and long-term planning and priority-setting. These meetings are attended by the ADAG, Direct Reports to the ADAG, and Regional Aboriginal Law Section Directors. Weekly Cross Country Calls provide a forum for the ADAG, Deputy ADAG and Direct Reports to the ADAG, as well as Regional Directors, to share information on active files, and issues on a more frequent basis. Weekly Direct Report meetings between the ADAG and her Direct Reports allow for discussions and the exchange of information on current management and legal issues.
2.2. AANDC Committee Participation
AAP counsel and managers participate in a number of AANDC Committees where legal advice and legal policy advice are requested and/or considered. These committees are, for the most part, the direct link between the AAP and AANDC, and represent governance and accountability mechanisms. The Portfolio’s AANDC LSU Head participates in the following AANDC Committees, which are all chaired by the Deputy Minister of AANDC:
- the Financial Management Committee;
- the Policy Committee; and
- the Senior Executive Committee.
In addition, the ADAG is the Department of Justice member sitting at the Federal Steering Committee for Comprehensive Land Claims and Self Government Negotiations – a Cabinet-mandated interdepartmental committee chaired by the AANDC. The ALC DG sits at the DG level Federal Steering Committee.
Regional litigation counsel, ALC counsel and managers participate in AANDC’s Directors General Litigation Committee chaired by the DG of AANDC’s Litigation Management and Resolution Branch.
The Directors of each section of the Portfolio’s AANDC LSU attend their respective client sectors management meetings. The Director of the Operations and Programs Section represents AAP’s AANDC LSU at the AANDC Operations Committee, chaired by the Associate Deputy Minister of AANDC. The Committee provides management direction on departmental operations, and on the implementation of departmental and risk management matters that require the attention of the Deputy Minister and Associate Deputy Minister. The Director of the Specific Claims Section participates in the AANDC Claims Advisory Committee, which considers all lawful obligation opinions and financial mandates for claim settlements, and makes recommendations to the Minister of AANDC whether to accept claims for negotiations and financial mandates for settlement.
The AAP budget and staffing levels were reduced in several increments, so that by 2012-13, the Portfolio had a complement of 612 full-time equivalent (FTE) staff. The total AAP planned spending budget was $65.6M with cost-recovery accounting for approximately 97% of the services. Regions accounted for 60% of the spending forecasts, compared to 40% for HQ divisions. Like other Department of Justice legal services, AAP operates on a hybrid funding model combining Justice A-base allocations and cost recovery from client departments and agencies. However, cost recovery accounts for nearly all of the Portfolio’s funding due in part to instances of initiative-based funding (e.g., funding for legal services related to the implementation of the Indian Residential School Settlement Agreement).
2.4. Key Activities
The following subsections provide descriptions of the key activities of the AAP.
National Strategic Coordination and Legal Risk Management
The AAP plays a national, strategic coordination role regarding Aboriginal law and Aboriginal legal policy, and is responsible for northern development legal issues under the AANDC mandate.Footnote 6 AAP works collaboratively across the Portfolio, the Department and in consultation with client departments. Consistent with the Department’s legal risk management approach, the AAP counsel identify and assess legal risks related to Aboriginal legal issues that involve/may have an impact on the federal Crown or on federal policy. They also take into consideration wider-ranging impacts (e.g., on other levels of government). Strategic coordination and legal risk management are thus integral to all AAP activities, and essential to the horizontal management of Aboriginal law and northern development legal issues from a ‘whole of government’ perspective.
Litigation services comprise a major element of the Portfolio’s activities. They consist of several key activities, including: working collaboratively with client departments on legal issues; developing and providing litigation strategies and advice; conducting litigation; developing dispute resolution (DR) options and strategies; and making recommendations and pursuing them as appropriate. Activities related to litigation fall within the broader framework of strategic coordination and legal risk management described above. The framework represents a critical approach and integral tool for the Portfolio’s legal services, as Aboriginal law and northern development legal issues arise in multi-layered and complex public policy environments, influenced by historic and current social, cultural, environmental and economic factors, with potentially profound future impacts. The AAP counsel consult with, and seek the advice of, other counsel within the Department as appropriate to each file.
Management and Support of a National Law Practice
The AAP undertakes many activities to ensure the effective management and support of a national law practice pertaining to Aboriginal law and northern development legal issues. This includes ongoing tracking and analysis of trends, drivers, risks, and other themes related to relevant legal issues through the completion of in-house data analysis, as well as national consultation and coordination and environmental scanning. These efforts assist the AAP in managing, forecasting and resourcing its work, and in providing effective services to client departments. The ALC maintains a national litigation inventory, which provides critical data for trend analysis and forecasting purposes.
In managing the national law practice, the AAP engages with partners and stakeholders through various information-sharing and coordination mechanisms, such as inter-departmental committees (e.g., the Strategic Intake Committee for litigation). Managing the national law practice also involves providing training opportunities and information sharing to develop knowledge and understanding within Justice, AANDC and other client departments, where Aboriginal law and northern development legal issues frequently emerge (e.g., legal project management training for counsel and paralegals; labour relations training for managers and supervisors; law and policy professional development sessions for the Portfolio, regions and clients; publisher training for support staff; ongoing lunch-and-learn sessions on specific aspects of Aboriginal law).
To ensure the provision of high-quality legal services, the AAP utilizes various knowledge and practice management tools and products. For example, there is an online tool accessible by both AANDC and AAP to track requests and deliver opinions. AAP has also piloted approaches for legal risk management to legal advisory services in both the ALC and LSU. Other tools, such as Justipedia (an online research and precedent database launched in 2012) are used to assist with the management and coordination of the Aboriginal law practice.
Legal Advisory Services
Legal advisory services are integral to the management and resolution of legal issues within the federal government. Recently, a National Advisory Deskbook was developed and became available online to all counsel offering legal advisory services. Advisory services encompass legal advice, litigation support and drafting of commercial and legislative documents, and negotiations support. Within the AAP, advisory services are provided by the ALC, the AANDC LSU and the Aboriginal Law Sections in the regional offices. Each performs a different role within this function:
- The ALC focuses on national coordination and strategy, legal trends and forecasting;
- The AANDC LSU provides advice to AANDC as a government department; and
- The Aboriginal Law Sections in the regional offices are more “transactionally-oriented.”
Specific activities can include:
- Providing legal analyses, legal options and advice on issues related to the AAP mandate;
- Developing and providing dispute prevention options and strategies, as well as resolution options and strategies, as appropriate;
- Supporting negotiations;
- Fulfilling the role of Department of Justice under the Federal Real Property and Federal Immovables Act (and regulations under this Act) relating to the acquisition and disposition of interests in real property;
- Supporting legislative drafting; and
- Drafting commercial documents.
Legal advisory services may be called upon, for example, to identify National Coordinators who are experts in substantive areas of law to develop legal templates and benchmarks pertaining to these areas. Through legal advisory activities and outputs, government decision-makers are informed of legal risks and options through various communication mechanisms (e.g., meetings, fora, committees).
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