Review of the Negotiation of Comprehensive Land Claims and Self-Government Agreements

Background

This review of negotiations of Comprehensive Land Claim Agreements (CLCAs) and Self-Government Agreements (SGAs) project was kicked off as an audit with the associated risk assessment and audit planning phase completed. Towards the end of the planning phase, management requested that specific elements of the table negotiation process be reviewed.

CLCAs define a wide range of rights and benefits to be exercised by Aboriginal claimant groups and usually include: full ownership of certain lands in the area covered by the settlement; guaranteed wildlife harvesting rights; guaranteed participation in land, water, wildlife and environmental management throughout the settlement area; financial compensation; resource revenue-sharing; specific measures to stimulate economic development; and, a role in the management of heritage resources and parks in the settlement area.

Under the Inherent Right Policy, the Government of Canada's recognition of the inherent right to self-government is based on the view that the Aboriginal peoples of Canada have a right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to the land and resources. SGAs provide arrangements for Aboriginal groups to establish stable, self-reliant governments to manage their internal affairs and assume greater responsibility and control over the decision-making that affects their communities. SGAs address the structure and accountability of Aboriginal governments, their law-making powers, financial arrangements, and provision of programs and services.

Aboriginal Affairs and Northern Development Canada (AANDC) is the key Federal government department responsible for meeting the Government of Canada's obligations and commitments to First Nations, Inuit and Métis and for fulfilling the federal government's constitutional responsibilities in the North, although other government departments also share this responsibility. AANDC negotiates and implements land claim and self-government agreements on behalf of the Government of Canada. AANDC's Treaties and Aboriginal Government (TAG) Sector is responsible for the Department's role in negotiating and bringing into effect CLCAs and SGAs. TAG plays the lead role in the negotiation of CLCAs and SGAs although other government departments (OGD) are significantly involved.

In 2012, AANDC announced a move toward a results-based approach for treaty negotiations that will focus resources on the most productive negotiating tables so that agreements can be reached sooner. AANDC is currently implementing the "new approach" which will promote alternative measures when appropriate and streamline TAG's processes.

Negotiation processes have generated a number of agreements over the course of the last 40 years and continue to produce innovation in both policy and process. The average current negotiation process, however, takes approximately 15 years to complete and while bureaucratic oversight is critical, the federal mandating and approval processes are cumbersome and can add significantly to the time required to negotiate agreements.

Review Objective and Scope

The objective of this review was to provide an independent assessment on a selection of management processes, which were identified for review by AANDC senior management, in place to support the following elements of negotiation tables for CLCAs and SGAs:

• Impact of governance structures on table activities;
• Efficient and effective use of resources; and
• Success Factors / Lessons Learned.

The scope of the review included a sample of table negotiation activities that took place during the period from April 1, 2012 to December 31, 2013. Activities occurring prior to April 1, 2012 were included in the scope for some samples deemed necessary to ensure a complete review of the negotiation process. The sampling approach, which was agreed upon with management, was based on the stage of negotiation, and the rate of progress at the table – as provided by management.

Conclusion

Within the scope of the topics reviewed, the following conclusions were arrived at:

• Impact of Governance Structures on Table Activities – The review identified that the governance structures in place are not currently effective in managing Other Government Departments (OGDs) involvement in negotiations and monitoring overall progress of table negotiations. Further, opportunities have been identified, based on shared best practices, to coordinate and prioritize requests for input by OGDs in the negotiation process to ensure OGD attention and resources are focused on the priority negotiations and to maintain a central repository of OGD feedback that can be leveraged as part of future OGD requests.
• Efficient and Effective Use of Resources - Formal processes are in place and are being consistently applied to support the efficient and effective use of resources, including table planning, table budgeting and associated monitoring and reporting. Opportunities to improve the overall efficiency and effectiveness of the table negotiation process were identified through the introduction of multi-year table work plans and determining the total cost of table negotiations by table.
• Success Factors / Lessons Learned - The review identified key success factors, lessons learned and best practices from negotiations that have been highlighted in this report. It was identified that while best practices, lessons learned and success factors are typically shared within Branches there is an opportunity to share them across all Branches.

Recommendations

The review team identified areas where management control practices and processes could be improved, resulting in five recommendations as follows:

1. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector should explore potential changes to the oversight role of the Federal Steering Committee for Treaty Negotiations undertaken by the Government of Canada to ensure accountability for progress at negotiating tables is shared amongst responsible Departments.
2. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector should develop an approach to consolidate, track and prioritize all OGD requests (across all Branches) so that requests to OGDs are coordinated (i.e. similar requests consolidated) and prioritized for issues for which input of the OGD is more time or complexity sensitive. A Sector-level knowledge management tool or process should be developed to capture previous OGD feedback and input so negotiators can equip themselves with the positions/responses provided in the past and allow the input process to be more streamlined as more background/historical precedence can be leveraged.
3. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector should determine an appropriate mechanism (e.g. policy or directive) to establish the requirement of federal multi-year work plans to support the tracking of table process against time-limited mandates. These plans should be developed in conjunction with all relevant OGDs. Monitoring of progress against the work plan should be assigned to the Federal Steering Committee.
4. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector, as part of the implementation of the results-based approach, should develop an approach to track all direct costs associated with table negotiations at a table level for use in decisions related to the development of multi-year work plans, resource allocation and prioritization of tables (including consideration of alternative measures).
5. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector should develop a process whereby lessons learned, best practices and success factors can be shared across Branches periodically which would be documented and made available to all negotiators for future reference so that negotiators could consider these success factors and their applicability to their own tables.

Management Response

Management is in agreement with the observations, has accepted the recommendations included in the report, and has developed a management action plan to address them. The management action plan has been integrated into this report.

1.1 Introduction

Section 35 of the Constitution Act, 1982 and the Courts have recognized the existence of Aboriginal rights. The reconciliation of those rights with the rights and interests of all Canadians is essential to ensure Canada’s prosperity, to limit federal liabilities and to avoid potential conflicts. The Government of Canada negotiates Comprehensive Land Claim Agreements (CLCAs) and Self-Government Agreements (SGAs) with Aboriginal groups and provincial and territorial governments in order to reach practical and workable agreements in an attempt to resolve outstanding issues in relation to asserted Section 35 Aboriginal rights and title.

1.2 Comprehensive Land Claim Agreements

CLCAs define a wide range of rights and benefits to be exercised by Aboriginal claimant groups and usually include: full ownership of certain lands in the area covered by the settlement; guaranteed wildlife harvesting rights; guaranteed participation in land, water, wildlife and environmental management throughout the settlement area; financial compensation; resource revenue-sharing; specific measures to stimulate economic development; and, a role in the management of heritage resources and parks in the settlement area.

The Comprehensive Land Claims Policy (1986) stipulates that land claims may be negotiated with Aboriginal groups in areas where claims to Aboriginal title have not been addressed by treaties or through other legal means. Comprehensive land claims are based on the assertion of continuing Aboriginal rights and title.

1.3 Self-Government Agreements

Under the Inherent Right of Self-Government Policy (1995), the Government of Canada’s recognition of the inherent right to self-government is based on the view that the Aboriginal peoples of Canada have a right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to the land and resources. SGAs provide arrangements for Aboriginal groups to establish stable, self-reliant governments to manage their internal affairs and assume greater responsibility and control over the decision-making that affects their communities. SGAs address the structure and accountability of Aboriginal governments, their law-making powers, financial arrangements, and provision of programs and services.

1.4 Negotiations of Comprehensive Land Claim Agreements and Self-Government Agreements

Negotiations of CLCAs and SGAs are based on two Government of Canada policies: The Comprehensive Land Claims Policy (1986) and the Inherent Right of Self-Government Policy (1995). In accordance with the British Columbia Treaty Commission (BCTC) Act, 1995, negotiations in British Columbia (BC) follow a unique negotiation process under the BC Treaty Processwhere negotiations are overseen by an independent facilitator (The BCTC).

AANDC negotiates and implements CLCAs and SGAs on behalf of the Government of Canada. AANDC’s Treaties and Aboriginal Government (TAG) Sector is responsible for the Department’s role in negotiating and bringing into effect CLCAs and SGAs. TAG plays the lead role in the negotiation of CLCAs and SGAs although other government departments (OGDs) are significantly involved.

Negotiation processes have generated a number of agreements over the course of the last 40 years and continue to produce innovation in both policy and process. The average current negotiation process, however, takes approximately 15 years to complete and while bureaucratic oversight is critical, the Federal mandating and approval processes are cumbersome and can add significantly to the time required to negotiate agreements. Moreover, evolving constitutional law, changing public and economic environments, and experience from existing processes have served to identify a range of issues where there is a need to consider renewal of policies and processes for addressing Section 35 rights.

There are currently 93 CLCA/SGA negotiation tables in process. Of these tables, 53 (57%) are currently being negotiated under the BC Treaty Process.

1.5 Results-Based Approach

On September 12, 2012, the Minister of AANDC announced plans to work with its partners on a new results-based approach to treaty and self-government negotiations. This approach was designed to streamline the negotiation process and focus resources on the most productive negotiating tables so that agreements can be reached sooner.

The results-based approach focused on three key pillars.

Pillar 1:

Results-based Negotiations to Achieve Results with Partners

Pillar 2:

Promoting More Effective Use of Other Tools to Address Aboriginal Rights and Promote Economic Development and Self-sufficiency

Pillar 3:

Speeding up Processes

At the time of the review the new approach has not been fully implemented. An assessment of all tables was completed and reported on and the implementation of Regional Management Plans (RMP) has been completed.

The announcement of the results-based approach without complete implementation has resulted in some unintended results, including:

• Uncertainty by negotiating partners regarding the impact of the results-based approach on their table; and
• Push by some previously dormant or unproductive tables to re-energize table negotiations to ensure the continuity of negotiations has resulted in increased demand on resources.

2.1 Review Objective

The objective of this review was to provide an independent assessment on a selection of management processes that were identified for review by AANDC senior management.

2.2 Review Scope

The scope of the review included an assessment of the management processes in place to support the following elements of the negotiation tables for CLCAs and SGAs:

A) Impact of Governance Structures on Table Activities

• Responsiveness, flexibility and nimbleness of whole-of-government governance model (Federal Steering Committee (FSC) and Federal Working Group) for guiding individual table negotiations;
• Impact of results-based regional plans and planning processes on individual table negotiations; and
• Impact of regional and national strategic considerations on individual table negotiations.

B) Efficient and Effective Use of Resources

• Table planning and budgeting;
• Execution of table plans and ongoing management of table activities against the appropriate decision-making framework, including processes to adjust table plans as required based on opportunities or challenges; and
• Monitoring and reporting of table progress and budget, including processes to reallocate resources as required.

C) Success Factors / Lessons Learned

• Identifying barriers to success for negotiation tables;
• Identifying factors for successfully achieving goals at negotiation tables;
• Identifying lessons learned from successes and failures in negotiation processes; and
• Incorporating best practices / success factors / lessons learned into strategic planning and table

The scope of this review included table negotiation activities that took place during the period from April 1, 2012 to December 31, 2013. Activities occurring prior to April 1, 2012 were included in the scope for some samples deemed necessary to ensure a complete review of the negotiation process. The sampling approach, which was agreed upon with management, was based on table categories and the stage of each table in their negotiation life cycle – as provided by management.

5.1 Governance over Table Activities

Negotiations of CLCAs and SGAs require a high degree of coordination and cooperation between federal departments as the agreements address various areas/topics that are not the jurisdiction of AANDC. Although AANDC is responsible to lead and coordinate the federal government negotiation activities, in order to facilitate the coordination, a federal committee structure has been established to support the negotiation of these agreements which includes:

• Federal Working Group – The mandate of this governance entity is to strive for interdepartmental and Federal interest and consensus on all transactional items brought before it, before recommending their submission to the Federal Steering Committee (FSC). Representatives on the Federal Working Group are expected to have the knowledge and authority to present their department/agency's interests and to engage in the resolution of issues during the working group's deliberations before a recommendation is made to FSC.
• Federal Steering Committee (FSC) – An ADM level steering committee to provide direction to Federal departments on treaty and self-government agreements and to provide direction on strategic and fiscal issues. At a transactional level, specific responsibilities of the FSC are to review and approve or recommend negotiating mandates; provide regular ongoing review, at a senior level, of Federal self-government and comprehensive land claims priorities; negotiate strategies and operational issues that relate to negotiations; facilitate the participation of all Federal departments and agencies, as required, in the negotiation process; and develop performance indicators and monitor the progress of all self-government and comprehensive land claims negotiations.

5.2 Efficient and Effective Use of Resources

Given the recent Deficit Reduction Action Plan initiatives and the associated staff/budget cuts with the large number of table negotiations, there is a key focus in the Department on the efficient and effective use of resources during table negotiations. The review team assessed the management processes in place, at both the sector and branch level, that support the efficient and effective use of resources; however, it did not assess the appropriateness of spending levels.

Interviews were conducted with the Director General and Director of each branch as well as the Negotiators for each of the sample tables. The purpose of these interviews was to gain further insight into:

• The table planning and budgeting process;
• The ongoing management of table activities against the appropriate decision-making framework, including processes to adjust table plans as required based on opportunities or challenges; and
• The monitoring and reporting of table progress and budget, including processes to reallocate resources as required.

Through interviews/surveys across the three Branches and the file review on 15 tables, several effective management practices were noted.

5.3 Success Factors and Lessons Learned

In the 40 years since AANDC has been in negotiations with First Nations and provincial and territorial partners, the Federal government has signed 29 agreements for CLCAs and SGAs, including three (3) final agreements in the last three years.

Given AANDC's rich overall experience in the negotiation process, and taking into account the recent experiences in reaching final agreements, a discussion on success factors and lessons learned was included in this review. The intent of the inclusion of success factors and lessons learned into this review was to provide a snapshot of what negotiators believed to be the core considerations for success.

5.3.1 Key Success Factors

Several key success factors were identified throughout the course of the review, based on the input of 27 individuals, including negotiators, table leads, Directors, and Director Generals. These factors were based on recent experiences at current negotiating tables as well as from concluded tables. They include:

• Table Dynamics: Tables that experience strong momentum towards, and successful completion of, shared objectives tend to have key dynamics around the negotiating table, including:
  • Establishing respect and trust of all parties in the negotiation process. These strong relationships can help facilitate dealing with contentious issues.
  • Stability amongst the negotiating teams. This facilitates the trust and respect of the negotiators at the table. Turnover, at the table can set back negotiations as the new relationships have to be established.
  • Adequately resourced tables. This includes having the right human resources at the table with the necessary skill set and experience to facilitate successful negotiations such as having a trusted and experienced CFN / Senior Federal Representative.
  • In the Negotiation West, Treaty Related Measures funding is instrumental in advancing tables. This funding is designed to facilitate capacity development to help communities prepare for treaty implementation Self Governing. In the other two (2) Branches, a funding known as "Gathering Strength" provides funding for similar activities such as ratification preparation and capacity development.
• An Effective Federal Government Effort: Success at the negotiating table requires a coordinated and cooperative working relationship amongst Federal stakeholders away from the negotiating table.
  • Strong relationship with OGDs. Establishing strong working relationship with OGDs can facilitate obtaining timely input on issues outside of AANDC jurisdiction.
  • Effective working relationships with Central Agencies supported through regular communication and briefings from lead negotiators. Without early buy-in from Central Agencies, progress can be stalled.
  • Having a flexible and up-to-date mandate from Cabinet provides negotiators with confidence at the table to push the agreement forward.
• Factors not in Negotiators' Control: Often the success of a negotiation is dependent on factors not in the direct control of AANDC.
  • Strong political priority, interest and attention amongst all parties to complete a deal. This is seen, for example, when the agreement would allow for a major resource project to be implemented, which is desired by all parties. This also helps in accelerating the negotiation process.
  • Engagement and commitment in the process by the claimant, and by the provincial/territorial government.

5.3.2 Lessons Learned

Some of the lessons learned that were shared during the interviews included:

• Leveraging Previous Agreements: The ability to leverage the format, language, or model used in previous agreements can greatly streamline the negotiation process. The leveraging of language used in previous agreements for similar topics has worked for some tables and has reduced negotiation effort and time to concentrate on other issues. In a negotiation in the East Branch, where the negotiating First Nation agreed to use a previous agreement as a template, adopting the language of most chapters, it allowed the negotiation to be completed within a shorter period of time (approximately five (5) years). Note the use of wording in a previous agreement must reflect the assessment of its appropriateness to the agreement.
• Community Involvement / Ratification Vote Planning:Initiating communication with the First Nations Community from the onset or early in the negotiation process and continuing throughout the process with regular updates by the First Nation Negotiators has also been a successful strategy.In some cases the community have been invited to observe the negotiation process when there are negotiations in the Community. Communication is especially important where there are First Nation Bands aggregated in the negotiation process. Extending a standing invitation to Chiefs and council members to participate in the process can foster this communication.
  
  Significant planning and preparation in advance of ratification votes is another success factor. These votes are political in nature and are better informed with careful planning and support to ensure the details and nature of the agreement is adequately communicated to the community members prior to voting. This responsibility lies with the Aboriginal Community, but the Department plays a key supporting role. During our interviews and sample review we noted two (2) tables that were derailed by ratification votes that failed because of insufficient planning.
• Front Loading Challenging Issues: Numerous negotiators emphasized the importance of completing as much as possible of the chapter negotiations, especially the contentious items early, during the Agreement in Principle (AiP) Stage rather than "punting" difficult items to the Final Agreement Stage. This mitigates the risk of negotiations being derailed late in the process. Having difficult discussions early in the negotiation process helps ensure potential "deal breaker" issues (e.g. application of Charter of Rights) are addressed prior to investing time and resources into a lengthy negotiation. In some instances the Lead negotiators discussed the benefit of setting expectations at the beginning of the negotiation process. This requires the First Nation to determine from the onset what they expect the final agreement to look like. Addressing the difficult issues at the beginning of negotiations ensures that all stakeholders have a common understanding of the potential outcome of the agreement and can determine if an agreement should be pursued. This also speeds up the pace of negotiations as many of the major issues have been discussed. Negotiators indicated that when they spend more time at the AiP stage to ensure that the chapters are actually agreed upon "in principle", there is less work at the Final Agreement stage.
• Begin Overlap Discussions Early: The Federal government has a 'duty to consult' when there are potential overlap issues. It is good practice to address overlap concerns and have overlap agreements in place prior to, or early in, the negotiations process which will result in less potential delays later in the process. In one negotiation in the Negotiations East Branch, the existence of a signed Overlap Agreement with the neighbouring Aboriginal group before the negotiation started expedited the discussion and saved time and effort. The Negotiation East Branch has indicated that they are involved with some overlap consultations and are preparing a document on Overlap Consultation to be shared with the other Branches.

5.3.3 Best Practices

The review has highlighted best practices identified within the Branches and the Sector. At a Branch level there were unique best practices identified and which have been highlighted throughout this report.

At the Branch level, negotiators of successfully completed tables have shared the successes with other Branch negotiators either through discussions or presentations. For example, in the Negotiation West Branch knowledge sharing of the successes through Maa'Nulth, Tsawassen and Yale are shared through presentations, reports and discussions within the Branch. For the Yale agreement, a chronology of the negotiation outlining the steps at each stage of the negotiation has been prepared and shared with negotiators at each Branch.

Although the various best practices have been adopted at Branch level and some cases these best practices have been shared, they are typically shared within the Branch and have not been shared and adopted across the other Branches. Without the sharing of best practices and lessons learned between the branches, negotiators might not benefit from the efficiencies that have been realized from past successes.

Recommendation

5. The Senior Assistant Deputy Minister, of the Treaties and Aboriginal Government Sector should develop a process whereby lessons learned, best practices and success factors can be shared across Branches periodically which would be documented and made available to all negotiators for future reference so that negotiators could consider these success factors and their applicability to their own tables.