Audit of Consultation and Accommodation

Consultation and Accommodation within AANDC

Within AANDC, Sector activities can adversely impact potential or established Aboriginal or Treaty rights and, thus, may trigger a legal duty to consult. AANDC Sectors and some examples where the Crown’s legal duty to consult is triggered in relation to rights under Section 35 of the Constitution Act include:

• Lands and Economic Development (LED): Additions to Reserve (ATR); reserve creation; and environmental management activities on reserve lands. Before setting apart land as Reserve, AANDC will consider the impact of such action on the Aboriginal or Treaty rights of other Aboriginal Groups;
• Treaties and Aboriginal Government (TAG): negotiating and signing land claim agreements in regions with overlapping claims; and,
• Northern Affairs Organization (NAO): contaminated sites remediation activities; approval of Type A water licences; and, licences to prospect and prospecting permits, mineral leases, mineral claims.

As per the 2007 Government of Canada Action Plan, the Crown has adopted a whole-of-government approach to Aboriginal consultation and AANDC has been mandated to lead the development and support the implementation of this approach. The AANDC Consultation and Accommodation Unit (CAU) was established in 2008 under the Policy and Strategic Direction (PSD) Sector to provide support to federal departments, agencies and their officials as they work to fulfill their respective legal duties on Aboriginal consultation and accommodation. CAU is now part of the Treaty and Aboriginal Government (TAG) Sector. CAU’s primary activities can be subdivided into three main areas: policy and training; consultation information services; and support to partnerships.

Within AANDC, the CAU provides advice and support to Sectors; however, Sectors are responsible for developing processes for fulfilling the Crown’s legal duty to consult obligations which fall under AANDC mandate. Sectors have, in turn, developed specific guidelines, tools, and operational procedures with respect to fulfilling this legal duty. The CAU continues to provide support to AANDC Sectors to ensure that they adequately comply with the legal obligations for the duty to consult; helps address issues/concerns and any specific need/requirement on other Department policy or program issues; and, provides positions and feedback on policy and litigation issues.

Consultation and Accommodation within AANDC

Within AANDC, Sector activities can adversely impact potential or established Aboriginal or Treaty rights and, thus, may trigger a legal duty to consult. AANDC Sectors and examples where the Crown’s legal duty to consult is an obligation in relation to rights under Section 35 of the Constitution Act include:

• Lands and Economic Development (LED): Additions to Reserve (ATR); reserve creation; and, environmental management activities on reserve lands. Before setting apart land as Reserve, AANDC will consider the impact of such action on the Aboriginal or Treaty rights of other Aboriginal Groups;
• Treaties and Aboriginal Government (TAG): negotiating and signing land claim agreements in regions with overlapping claims; and,
• Northern Affairs Organization (NAO): contaminated sites remediation activities; approval of Type A water licences; and, licences to prospect and prospecting permits, mineral leases, mineral claims.

The Crown has adopted a whole-of-government approach to Aboriginal consultation and AANDC has been mandated to lead the development and support the implementation of this approach. The AANDC Consultation and Accommodation Unit (CAU) was established in 2008 under the Policy and Strategic Direction (PSD) Sector to provide support to federal departments, agencies and their officials as they work to fulfill their respective legal duties on Aboriginal consultation and accommodation. CAU is now part of the Treaty and Aboriginal Government (TAG) Sector.

CAU’s primary activities can be subdivided into three main areas:

• Policy and Training – the CAU policy team develops broad policy guidance and advice, as well as develops modules for the training sessions on various aspects of consultation and accommodation. Both basic and advanced training sessions have been developed and offered in HQ and regionally. To date, training has been given to over 2,700 federal officials, both within AANDC and for other departments.
• Consultation Information Service (CIS) - is a single window which provides information relevant for consultations to external stakeholders, and advisory input for federal departments and agencies with responsibilities for consultation. CIS also manages the Aboriginal and Treaty Rights Information System (ATRIS). ATRIS is an electronic system created by CAU, that brings together information on the location of Aboriginal communities, related profile data, protocol and agreement information, and information pertaining to their potential or established Aboriginal or Treaty rights; and,
• Partnerships - in supporting the whole of government approach, the CAU Partnerships team supports the Crown’s negotiations and signings of consultation protocols and Memoranda of Understanding (MOU) with provinces and territories. Within the CAU, Regional Consultation Coordinators (RCCs) liaise with federal government departments, regional/local Aboriginal groups, provinces and territories and industry by establishing and maintaining relationships with other government departments and agencies, provinces and territories, and industry with regards to consultation.

In 2011, the CAU updated the Guidelines for Federal Officials to Fulfill the Duty to Consult. The updated Guidelines are designed to provide practical advice and guidance to federal departments and agencies in determining when the legal duty to consult may arise and how it may be fulfilled. The content of the Guidelines are informed by the Crown’s understanding of the legal parameters of the legal duty to consult and provide policy-based, step-by-step guidance to assist officials in their efforts to effectively incorporate consultations, and, where appropriate, accommodation to government activities and processes.

Within AANDC, the CAU provides advice and support to Sectors, however, Sectors are responsible for developing processes for fulfilling the Crown’s legal duty to consult and accommodation obligations. Sectors have, in turn, developed specific guidelines, tools, and operational procedures with respect to fulfilling the Department’s legal duty to consult obligations. The CAU continues to provide support to AANDC Sectors to ensure that they adequately comply with the legal obligations for the duty to consult, helps address issues/concerns and any specific need/requirement on other Department policy or program issues, and, provides positions and feedback on policy and litigation issues.

5.1.1 Departmental Governance of Consultation and Accommodation

Effective department-level governance and coordination mechanisms can be used to assist in the sharing of information related to how the Department strategically coordinates and shares information on common consultation and accommodation activity occurring within the department. Within AANDC, there is an Intra-Departmental Working Group established to facilitate a common understanding of how the Department consults and accommodates and promote coordination and cooperation among Sectors. The Intra-Departmental Working Group meets regularly and is facilitated by the CAU.

Sectors are responsible for integrating the guiding principles and consultation directives from Canada's Guidelines for Federal Officials to Fulfill the Duty to Consult into their own day-to-day activities. Sectors have developed specific guidelines in order to provide Sector staff with policy-based guidance to assist in their efforts to effectively incorporate consultations and, where appropriate, accommodation measures into Sector activities and processes. These Sector polices are reviewed and approved by appropriate Sector-level decision-making governance Committee (e.g. Overlap Committee, Additions to Reserve Technical Committee) which meet regularly and are sometimes attended by the CAU.

While Sectors have, on occasion, presented proposed Sector consultation guidelines at Departmental governance Committees (e.g. Departmental Senior Policy Committee), seeking Committee feedback and comment, the audit found that there is no Departmental senior level governance Committee specifically assigned responsibility for departmental decisions on consultation and accommodation and there is no formal requirement for Sectors to seek input or approval from a departmental governance Committee when developing consultation and accommodation guidelines, and if they do, there is no required follow-up by the Committee on actions taken as a result of having presented. Instead, each Sector is responsible to fulfill the Crown's legal duty to consult within their Sector processes.

While the CAU facilitates the Intra-Departmental Working Group, the CAU does not have any formal authority to approve Sector guidelines on legal duty to consult, or to ensure that Sectors fully implement the legal duty to consult. Membership of the Intra-Departmental Working Group is open to AANDC officials who are involved in the consultation and accommodation process and based on meeting minutes reviewed. Intra-Departmental Working Group discussions typically include information updates, but do not discuss strategic issues and participants do not typically include senior management. Interviewees noted that coordination and information sharing within the Department is difficult given that the operationalization of the legal duty to consult lies with each individual Sector.

For AANDC, not having a senior level governance mechanism to oversee and coordinate consultation and accommodation activity creates an increased risk to the Department, given that policy and process decisions in some Sectors can create legal duty to consult requirements for other AANDC Sectors (e.g. negotiated claim settlements in TAG Sector can sometimes include specific or named parcels of land which may have legal duty to consult implications for the LED Sector). In addition, as Sectors are required to make new legal duty to consult policy decisions or further advance their implementation of accommodation measures in other areas (e.g. economic development), without a coordinated approach or departmental-level governance mechanism, there is increased risk that Sectors will adopt different (and perhaps contradictory) approaches in how they choose to implement legal duty to consult and accommodation policies.

5.2.1 Legal Advice / Utilization Reporting

The Department of Justice provides an important advisory role to the Department on the legal aspects of consultation policy choices, especially as it relates to providing legal advice across government and as the case law in this area continues to develop. Justice is not responsible for conducting consultations or collecting the appropriate factual information regarding potential or established Aboriginal or Treaty rights and potential adverse impacts of an activity; however, the legal duty to consult is a legal obligation and raises a number of legal issues. It is important for Sectors to work closely with Justice when assessing if and how consultation may need to be incorporated into departmental activities and approaches for identifying and addressing this legal duty.

In most instances, depending on the information gathered and the initial assessment made, it is important that Department officials are able to determine whether a legal duty is triggered and consultation is required. Identifying, in advance, which activities may trigger a legal duty to consult will help staff more efficiently make case-specific initial assessments. Keeping in mind that Section 35 rights are site and group specific and as such could be the associated Crown's legal duty to consult, developing standard departmental consultation approaches and prioritizing questions needing legal clarification on a common consultation issue could also reduce the need for advice on a case-by-case basis and help to streamline requests for legal advice.

A Memorandum of Understanding (MOU) is in place which describes the governance, price and performance regimes between AANDC and Justice for the demand and provision of legal services. Justice service standards and operational indicators are described in an Annex to the MOU. Interviewees noted that legal duty to consult advice provided by the Justice Legal Services Unit to AANDC is considered to be constructive and helpful in most instances. Although Justice strives to ensure that it "speaks with one voice" when advice is provided, those audited noted that more consistency can be achieved in the area of consultation.

While Justice has reportedly implemented internal working groups and databases to help improve the sharing of information on the legal duty to consult among Justice Counsel, to date, this information has not been shared with AANDC. The audit found that there is no mechanism or process in place within AANDC to ensure that a consistent, cross-country perspective or opinion is provided by Regional Justice Legal Counsel on legal duty to consult issues.

As per the MOU, Justice provides the Department a monthly Corporate Statement report summarizing amounts invoiced and supporting information on billings and disbursements. The audit found, however, that the standard utilization reports provided by Justice to Sectors and Regions do not include detailed legal costs on a project by project basis making it more difficult for the Department to track estimated versus actual legal costs or to improve efficiencies by identifying instances where similar legal advice has been requested by different parts of AANDC. Some Regions have successfully worked with their Regional Justice Counsel to develop more useful, detailed utilization reporting. Frequent changes to AANDC business line structure and different Department reporting needs and requirements have made it more difficult for Justice to develop a standard reporting approach which is considered useful for everyone in the Department.

While duty to consult legal issues and legal frameworks can require unique case-by-case legal advice, without clear expectations to Justice on what consistent, national advice is required on common consultation issues, there is an increased risk that advice provided by Justice to the Department is inconsistent or duplicative, resulting in increased inefficiencies or costs to the Department. Without clearly defined and improved utilization reporting, there is increased risk that the Department will be unable to work with its Justice representatives to ensure efficiency by optimizing resources and tracking budget progress on a project by project basis.

5.2.2 Guidance on Consultation and Accommodation

It is important that departmental policies and guidelines are developed and implemented, and are aligned with the Crown's policies and guidelines for consultation and accommodation. Sectors are expected to approach Aboriginal consultation with the awareness that they may be required to access their own records during the consultation process and demonstrate the completeness and integrity of the process at a later date.

Within the Department, Sectors have developed specific guidelines in order to provide Sector staff with policy-based guidance to assist in their efforts to effectively incorporate consultations and, where appropriate, accommodation into Sector activities and processes. In some Sectors, the legal duty to consult obligation has been fulfilled for many years; while other Sectors have only started implementing legal duty to consult as recently as January 2014. As such, sample testing was performed in the following Sectors for the following purposes:

• LED - to assess how LED implemented legal duty to consult following regional practices which were in place prior to LED ATR Guidelines (British Columbia) and to assess how LED has implemented the LED Interim ATR Guidelines (Manitoba);
• TAG West/Central/East Branches - to assess how legal duty to consult has been implemented following the TAG Guidelines for negotiators; and,
• NAO - to assess how legal duty to consult has been implemented following the Departmental Guidelines, as no NAO-specific guidelines are used. Legal duty to consult activities which were performed prior to devolution to the Government of Northwest Territories in April 2014, but no longer remained an AANDC responsibility after devolution were not examined.

In addition to site visits to British Columbia and Manitoba regions, interviews were also conducted with LED staff in the Ontario and Saskatchewan regions.

Generally, the audit found that in the sample files reviewed, AANDC procedures with regards to legal duty to consult are being followed appropriately and effective recordkeeping and records management practices are established and functioning. The audit found that there is currently a need for further clarity and guidance in Sectors' operational procedures with regards to the legal duty to consult and accommodate as described below:

5.2.3 Aboriginal and Treaty Rights Information System (ATRIS)

Developing and implementing an inventory of information on the location and nature of established or potential Aboriginal and Treaty rights was a key aspect of the 2007 Action Plan on Aboriginal Consultation and Accommodation. Accordingly, a web-based information system to provide information on Aboriginal communities and their potential or established Aboriginal and Treaty rights was established. The AANDC Aboriginal and Treaty Rights Information System (ATRIS) is intended to be used as a research tool that can be used to view, gather and query "baseline information" regarding Aboriginal treaties, rights, claims, legal proceedings, geographic and other related subject matter (e.g. what existing or potential rights may exist within the vicinity of a proposed government or industry initiative). ATRIS is funded entirely by AANDC and was launched in 2011.

The purpose of ATRIS is not to provide a defined list of which Aboriginals need to be consulted and the level of consultation - the purpose of ATRIS is to provide factual information on potential and/or established rights. Crown officials from Federal, Provincial and Territorial Governments are provided access to ATRIS to assist them in determining whether a legal duty to consult exists and the extent of the consultation that is required. Furthermore, the public, including private industry and Municipal Governments, also has access to ATRIS for research or general information relating to Aboriginal and Treaty rights.

ATRIS is still considered a relatively new system that was developed initially in 2011 by integrating multiple types of information from different sources. The CAU expects ATRIS to continue to evolve as new information is made available. In that regard, ATRIS has recently been updated and is now in its second version (Version 2.0 in April 2013 and Version 2.2 in March 2014). It is CAU's intention to integrate additional information from other Departments, provinces and territories in future software releases and to add more land claims and assertion records to ATRIS regularly.

The CAU did recognize that the system might not be intuitive to all users, because of its uniqueness in optimizing the use of map technology to represent interactive data, and because of the limitations imposed by government standards when developing a web application. To mitigate this, CAU has been providing training sessions to all government officials since its inception, and monthly training sessions to the public since April 2014. A question period is provided at the end of each training session. ATRIS users are also encouraged to use the feedback form available in ATRIS to inform CAU on system improvements and general feedback. ATRIS training is based on the functions of the version that is current at the time of the training. Once additional functions are added and new versions released, the training is adjusted to reflect the new features. At any time, ATRIS users can send an email to the ATRIS and/or CIS generic mailbox if they have any questions about the use of the system or its content.

The audit interviewed AANDC staff who are expected to use ATRIS (but not ATRIS users in other government departments, Provinces and Territories, industry or the public) to inquire about the support ATRIS provides in fulfilling their legal duty to consult responsibilities. At the time of the audit, Version 2.0 was included in the audit scope - Version 2.2 was introduced at the end of the audit period (March 2014). While the audit found that interviewees felt that ATRIS is generally viewed as a helpful information source, some interviewees reported that the system was insufficient for their needs and various other sources were still necessary to supplement the information. Additional sources identified in the Regions included customized software tools, provincial systems, in-house and/or local expertise, and Department of Justice Lawyers. Even though a disclaimer is included in ATRIS which states that "… the data is subject to change without notice. AANDC does not warrant or guarantee that the information is accurate, complete or current at all times" not all interviewees felt ATRIS provided the information required to identify the Aboriginal groups that need to be consulted and many interviewees were not aware that ATRIS was intended only as a source of 'baseline information'. Not all interviewees understood the limitations of ATRIS and how to ensure they were looking at the relevant information indicating that CAU ATRIS training material has not always provided clear communication of capabilities and limitations.

As with any system which is scalable and targeting multiple user groups as is the case with ATRIS (e.g. regions, other government departments, public, AANDC), it is important for the Department to clearly define what is considered 'baseline information' and to provide updated description of the ATRIS capabilities, boundaries, and limitations in training material. Given that sources of information for legal duty to consult continue to evolve, it will be important for management to follow the departmental IM/IT Portfolio Management Framework process when making decisions on what new ATRIS system capabilities and features should be funded by AANDC and reassess what is considered 'baseline information'.

Without continued, clear and updated description of the ATRIS capabilities, boundaries, and limitations in training material, there is increased risk that staff may not clearly understand how ATRIS is intended to be used in fulfilling their legal duty to consult obligations. In addition, without periodic reassessment of ATRIS business needs, features, and functionality requirements, there is increased risk of escalating costs in attempting to satisfy user needs for a diverse group of stakeholders.