Evaluation of the Exceptional Contracting Limits Authority 2015-2016 to 2019-2020

Authority Profile

The Exceptional Contracting Limits Authority (ECLA) allows the Minister of Crown-Indigenous Relations to enter into and renew non-competitive contracts with Contract Federal Negotiators (CFNs) for negotiations with Indigenous parties, and Crown Deponents (CDs) and Expert Witnesses (EWs) required for litigation. The authority to use the ECLA is presently assigned to the Minister of Crown-Indigenous Relations who can delegate this authority to the Minister of Northern Affairs for CFNs hired under their purview. In January 2020, Treasury Board (TB) clarified that, through an interdepartmental service memorandum of understanding, Indigenous Services Canada (ISC) can access the authority until its renewal in 2022. There are four categories of authority limits for the department, renewed and amended in February 2017 (valid until July 31, 2021).

Evaluation Scope and Methodology

The purpose of this evaluation was to examine Crown-Indigenous Relations and Northern Affairs Canada's (CIRNAC) implementation of the ECLA from April 1, 2015 to March 31, 2020. Over the evaluation period, the Authority was not the only contracting enabler used for CFNs, CDs and EWs, however, the analysis of the objectives, roles and responsibilities of those other contracts were not within the scope of the evaluation.

The evaluation employed multiple lines of evidence and methods including a review of documents and files, a review of performance and financial data, and key informant interviews.

Relevance

There is a continued need for negotiations and litigation activities. CIRNAC has led the whole-of-government approach to the renewal of nation-to-nation, Inuit-Crown, and government-to-government relationships with Indigenous peoples, and advancing reconciliation, clear priorities for Canada. This responsibility is not expected to change, and negotiations and litigation have and will continue to play an important role, including contributing to departmental results.

CIRNAC's policy landscape shifted substantially over the evaluation period (e.g., Recognition of Indigenous Rights and Self-Determination (RIRSD) tables, Truth and Reconciliation Commission (TRC) of Canada Calls to Action, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Bill C-15: The United Nations Declaration on the Rights of Indigenous Peoples Act). This policy shift has had impacts on the manner in which CFNs, CDs, and EWs have been used, and the need for these types of contractors continued throughout the evaluation period and is expected to continue.

There remains a need for the department to have set flexible procurement tools and as an enabling authority, the ECLA serves as a key mechanism to appoint external negotiation and litigation resources. There has been a continued need to supplement CIRNAC's capacity with these types of external resources, a need that is expected to continue.

Design and Deliver

The ECLA is managed in a similar fashion as a program, with robust governance, management, and financial management structures, an important factor facilitating the achievement towards the ECLA outcomes.

The limited pool of appropriately qualified and diverse CFNs, CDs, and EWs is a concern, particularly as the demand for these resources are expected to continue.

Data concerning the diversity of CFNs, CDs, or EWs appointed through the ECLA is not collected. Consequently, the extent to which the ECLA provides access to a diverse population of contractors could not be determined. However, the ECLA has the potential to support GBA Plus goals of promoting equality, diversity, and inclusion. While this did not occur over the evaluation period, the need to do so is widely appreciated and early steps to do so have been considered by some business lines. Since there were 81 ECLA appointed contractors over the evaluation period, supporting 161 new negotiation and litigation files, there is a clear opportunity to consider GBA Plus goals.

Effectiveness

The ECLA was used to retain the majority of CFNs, CDs and EWs newly appointed by CIRNAC over the evaluation period. Since non-ECLA contracts were not within the scope of the evaluation, further analysis was not conducted as to factors associated with those contracts.

The ECLA has been instrumental in contributing to the advancement of key files through the appointment of CFNs, CDs, and EWs with the appropriate expertise, knowledge and experience. There is satisfaction with the performance of contractors retained by ECLA as their appointments are frequently extended or renewed, suggesting that timeframes defined in negotiation action plans, agreements or by the Court had been met.

The integrity of the performance review process for CFNs and the precision of CD and EW deliverables helps to ensure contractual obligations are respected.

Efficiency and Economy

Management and oversight of the authority is embedded in the programs, requiring support from the procurement hub when needed, including in the application of the delegation of the authority, support and guidance on how the delegation of the authority occurs, and choices of contractual arrangements and instruments to meet program needs. The ECLA is widely viewed as the most economical and efficient procurement arrangement available to efficiently appoint CFNs, CDs, and EWs.

1. Management Response

The Treaties and Aboriginal Government (TAG) sector and the Policy and Strategic Direction (PSD) sector acknowledge the findings of the evaluation report and have provided an action plan to address its recommendations.

The exceptional contracting limits authority (ECLA) is a special non-competitive contract authority that authorized the former Minister of Indian Affairs and Northern Development to appoint Federal Negotiators / Representatives for negotiations with Indigenous groups, expert witnesses, and Crown deponents deemed necessary for litigation. The authority was last renewed in 2017 and is currently in the process of being renewed for another five years for Indigenous Services Canada, Crown Indigenous Relations and Northern Affairs Ministers.

CIRNAC's Exceptional Contracting Limits Authority is co-managed primarily by TAG and PSD, in partnership with Chief Finances, Results and Delivery Officer (CFRDO) Procurement services, as two separate contracting streams. Negotiators/Representatives are managed by TAG, and expert witnesses and Crown Deponents are managed by PSD. The authority is also used by Northern Affairs Organization (NAO) and Resolution & Partnership (R&P - Childhood Claims). The action plan will be implemented jointly by TAG and PSD. TAG and PSD will consult with NAO and R&P as necessary.

2. Action Plan

1.2.1  Governance

Management and oversight of the ECLA is dispersed across four sectors, based on the two authority streams: litigation and negotiations. For both the litigation and negotiations streams, the operational and administrative relationship with contractors rests with the business line project authorities/case managers. The authority, as with all contracts, is processed through the procurement hubs with the project authority/case managers leading the process, and the associated resources allocated from regular program management.

Policy & Strategic Direction (PSD) sector was solely responsible for all CD and EW contracts issued under the ECLA until the 2018 reorganization. In support of CIRNAC's continued implementation of the transformation agenda, litigation management was decentralized, including the approval of using the ECLA. However, PSD continues to provide management and oversight over the authority. Treaties and Aboriginal Governance (TAG) sector continues to provide management and oversight of all CFN contracts.

As part of the 2002 authority approval, the department was required to establish compliance documents to enable a system of checks and balances, including detailed guidance documents to support compliance of the ECLA terms and conditions. Together, these documents serve as the management control framework used by business lines and the Cost Centre Manager when considering, initiating, and managing service contracts under the authority.

CIRNAC must comply with relevant legislation and TB policies, including the Financial Administration Act and the Contracting Policy. To enable compliant activities, CIRNAC (TAG and PSD) established their own set of procedures and guidelines, which include specific processes for establishing and managing CFN, CD, and EW contracts^{Footnote 3}.

Ministerial approval is required on all CFNs issued under the ECLA, and CD and EW contracts over $100,000. Contracts for CDs and EWs under $100,000 are approved at the Senior Assistant Deputy Minister level. Each sector has developed its own governance processes to support the initiation, renewal, and amendments process for contracts using the authority. Governance processes take into consideration the sensitivity and complexity of the deliverables that each contract seeks to achieve in relation to the associated litigation or claim, along with other factors as deemed appropriate.

The primary beneficiaries of the authority are the individuals (CFNs, CDs, and EWs) who hold a contract with CIRNAC issued under the ECLA. In the context of the department's mandate to engage in a renewed nation‑to‑nation relationship with Indigenous peoples, however, First Nations, Métis and Inuit communities and individuals can be viewed as beneficiaries. Additionally, the intention is that Canadians overall also benefit when contracts are issued under the ECLA, due to CIRNAC having access to an enabling mechanism that facilitates responsiveness and timeliness specific to litigation and claims matters.

Hiring and retaining of CFNs, CDs and EWs

The performance indicator associated with this outcome is "Appointments approved by the Minister and contracts signed and in place in appropriate timeframe to meet litigations, negotiations or other applicable processes deadlines". The annual target for this indicator is 100% of contracts in place in the appropriate timeframe. While the evaluation was unable to assess performance against expectations because data was unavailable, descriptive data was available to present the following profile of the hiring and retaining of CFNs, CDs, and EWs over the evaluation period.

Key informants were broadly in agreement that the ECLA had successfully facilitated the rapid appointment and retention of CFNs, CDs, and EWs, which in their view was not feasible using other procurement arrangements. In this respect, respondents pointed to the flexibility of the ECLA Terms and Conditions and the sound management framework resulting in a process described as "turnkey" and streamlined. Key informants did suggest some efficiencies to improve the ECLA turnaround times, including modifying contracting requirements for HST/GST registrations and obtaining security clearances.^{Footnote 8}

The ECLA was used to retain the majority of newly appointed CFNs, CDs and EWs over the evaluation period.

There were 161 new contracts raised by CIRNAC using ECLA. It is unclear if and to what extent CFNs, CDs and EWs were contracted using other procurement methods. Information from the document review indicates that this is an area that needs further understanding but was outside the scope of the evaluation.  

CFNs were contracted to fill a variety of roles, across four business lines, with TAG as the primary user.

During the evaluation period, 51 negotiation files were supported by resources appointed through the ECLA, with 67% Chief Federal Negotiators and 29% Ministerial Special Representatives (MSP). Of these, just over half (52%) served only as Chief Federal Negotiator, 20% only as Ministerial Special Representatives, while nearly one-quarter (24%) acted in both roles, with the remainder serving in an unspecified role.

During the evaluation period, there was some turnover of negotiation files supported by CFNs appointed through the ECLA. As a result there was an ongoing need to hire and retain CFNs. This requirement was met using the ECLA.

Apart from 2015–16, there has been a fairly consistent number of negotiation files carried over from previous fiscal years, between 20 and 25 files (Table 3). Over the evaluation period, 19 new files were opened (requiring the appointment of CFNs), 31 files were closed, and 20 files continued beyond 2019-20. The high number of files carried over from one year to another demonstrates the need to retain CFNs to ensure year-to-year continuity.

The roster of CFNs demonstrated similar turnover as negotiation files (Table 4). Over the evaluation period, 15 contractors were carried over from 2015–16, 10 new contractors joined the active roster, 16 contractors left the active roster, and nine contractors continued beyond 2019-20.

There was retention, with nine CFNs, appointed prior to 2015–16, continuing through 2019–20, and of these, seven retained into 2020–21^{Footnote 10}. Thirty-six percent of CFNs have contributed to two or more negotiation files over the evaluation period, with one supporting five files and another nine files.

Over the evaluation period, 64 EWs were appointed through 132 contracts raised through the ECLA. EWs were engaged across several business lines, Resolution and Partnership Sector (RPS) being the most represented sector.

During the evaluation period, 64 EWs were appointed through 132 contracts raised through the ECLA. RPS was the greatest user (75%) followed by TAG (21%). Within RPS, the Specific Claims Branch (61%) was the greatest user, followed by the Settlement Agreement and Childhood Claims Branch (14%).

During the evaluation period, there was some turnover of litigation files supported by EWs appointed through the ECLA.

The available data for EWs focused on new contracts for each fiscal year, excluding those contracts already underway prior to 2015–16 that continued during the evaluation period. The data demonstrated that EWs were appointed using the ECLA, and in the case of multiyear contacts, retained.

Over the evaluation period, the ECLA was used to appoint EWs as shown in Table 5. A substantial number of contracts were multi-year, demonstrating the need for retention of EWs to ensure year-to-year continuity. For example, since there were 35 new EW contracts raised through the ECLA during 2017–18, and payments were made on 67 contracts, 32 contracts were extended into at least a second year.

There was a significant degree of retention of EWs, with 44% of EWs with two or more contracts over the evaluation period, one with six contracts, one with seven contracts, and two with eight each.

Ten CD contracts raised through the ECLA were distributed across several business lines.

During the evaluation period, six CDs were appointed through 10 contracts raised through the ECLA (Table 6). TAG was the primary user (60%), followed by Individual Affairs Branch (previously part of RPS but moved to ISC in 2019) and RPS with 20% each.

For the 10 CD contracts raised through the ECLA during the evaluation period, six different contractors were hired, with three working on one contract, two on two contracts, and one on three contracts, suggesting a degree of retention within the roster of CD contractors.

Re-engaging in a renewed nation-to-nation process with Indigenous peoples.

The performance indicator associated with the outcome is "CFNs, CDs, and EWs deliverables submitted as per contractual obligations". The annual target for this indicator is 100% of deliverables met. Performance data was unavailable, however, some inference, with the support of the other lines of inquiry, could be made on the importance of the ECLA as an enabler in support of this outcome.

CFNs, CDs, and EWs were appointed, and often extended and reappointed, using the ECLA, over the evaluation period. This indicates satisfaction with the performance of these contractors, suggesting that deliverables had been met.

CFNs, CDs, and EWs were continually appointed using the ECLA on many ongoing and new negotiations and litigation files, with many concluding their assignments. Contractors also continued to be paid, in many cases over several years. This suggests that CFNs, CDs, and EWs contracted through the ECLA met their contractual obligations, and provided cost-effective contributions to progress negotiation and litigation files, which in turn contributed to re-engaging in a renewed nation-to-nation process with Indigenous peoples.

The integrity of the performance review process for CFNs and the precision of CD and EW deliverables helps to ensure contractual obligations are respected.

Contracts are based on appointment packages approved by the Minister for all CFNs and for CDs and EWs over $100,000. These packages state the objectives and outcomes particular to a negotiation or litigation file. Due to the predictability of litigation, contracts for CDs and EWs can be much more precise in terms of deliverables than those for CFNs. Key informants did not raise any performance issues with CFNs, CDs, and EWs appointed through the ECLA.

A widely recognized strength of the ECLA process is the table review process which includes an assessment of the performance of CFNs (in combination with self-assessment). Respondents noted that this process is particularly useful in the context of negotiations which can be "abstract" when compared to mainstream professional services, meaning that anticipated deliverables and deadlines can be subject to external factors out of control of the CFN and CIRNAC. Approximately half of the CFN table review performance appraisals occurred over the evaluation period. Annual performance reports for CFNs were overwhelmingly positive regarding the performance and contributions of CFNs, and almost all CFNs were assessed to have fulfilled contract terms, negotiated in good faith, acted in accordance with the federal mandate and guidance, established positive working relationships with other parties, presented valid and credible recommendations, made significant progress in meeting departmental objectives, and effectively managed public communications.

Given the small pool of available candidates, the performance of CDs and EWs are not formally appraised during the contracting and renewal process by PSD, however, Justice Canada may take performance into account when making future recommendations.

The ECLA has been instrumental in contributing to the advancement of key files, through the appointment of CFNs, CDs, and EWs with the appropriate expertise, knowledge and experience.

Supporting this medium-term outcome are observations of key informants, identifying the ECLA as instrumental in supporting many high-profile and sensitive files, such as devolution of the Northwest Territories and Nunavut, and the Caledonia blockade. Although Ministerial Special Representatives (MSR) have reportedly not been deployed as often as in the past, MSRs successfully supported the Arctic Policy Framework, a role that involved nation-to-nation considerations, and led community healing and commemoration sessions following the settlement of the Anderson claim in Labrador.

Many of the same findings noted above are equally applicable to the litigation function, and the ECLA has proven to be instrumental in the appointment of independent, neutral and specialized CDs and EWs. Respondents noted that there has been a shift in the way CDs and EWs have been used over the evaluation period, engaging in a more collaborative fashion (e.g., assisting CIRNAC in determining if out-of-court settlements should be pursued rather than litigation, and helping to develop out-of-court settlement mandates).

A renewed relationship with Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership.

The performance indicator associated with this outcome is "Agreements reached between Indigenous communities and government organizations on Section 35 assertions, including self-government rights and other processes that support reconciliation". The annual target for this indicator is "within timeframe defined in the negotiation action plans, agreements, or by the Court". The assessment of performance against these expectations was not completed because data was unavailable, however, based on other lines of inquiry, it can be inferred that the importance of the ECLA is as an enabler in support of this outcome.

This outcome has stronger links to negotiations, and the ECLA is one of the Minister's tools to support negotiations. Key informants noted that the ECLA has been particularly useful in advancing a renewed relationship and reconciliation, as CFNs act as Minister's representatives but are able to maintain distance from the departmental bureaucracy. CFNs have been able to lend credibility and trust to the Minister they represent, particularly in cases where the public service may have been unsuccessful in building and sustaining strong, productive, and respectful relationships with Indigenous peoples.

There is satisfaction with the performance of contractors retained by ECLA as their appointments are frequently extended or renewed, suggesting that timeframes defined in negotiation action plans, agreements, or by the Court had been met.

CFNs, CDs, and EWs were continually appointed using the ECLA on many ongoing and new negotiations and litigation files, with many concluding their assignments. Contractors also continued to be paid, in many cases over several years. This suggests that CFNs, CDs, and EWs contracted through the ECLA contributed to meeting timeframes defined in negotiation action plans, agreements or by the Court, which in turn contributed to a renewed relationship with Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership through the medium-term outcome.  

Key informants supported the contribution that ECLA has made to achieve the timeframes defined in negotiation action plans, agreements, or by the Court. Respondents noted that there are many other factors that can impact the action plans, agreements, and Court proceedings, but that the authority assists by ensuring that risks associated with the timeliness of CFN, CD, and EW contracting are mitigated.

Relevance : Continued Need and Alignment with Federal Priorities and CIRNAC Results

CIRNAC is leading Canada's whole-of-government approach to the renewal of nation-to-nation, and government-to-government relationships with Indigenous peoples, and advancing reconciliation. This responsibility is not expected to change, and negotiations and litigation have and will continue to play an important role.

The department's policy landscape has, however, shifted considerably over the evaluation period, following Canada's 2015 commitment to achieving reconciliation with Indigenous peoples and to implement the recommendations of the Truth and Reconciliation Commission of Canada (TRC), the launch of the RIRSD tables in 2015, endorsement of UNDRIP in 2016, and the introduction of Bill C-15: The United Nations Declaration on the Rights of Indigenous peoples Act in 2020. These commitments have meant a greater focus on the reconciliation of relationships and nation-building over the evaluation period, and it is expected that the impacts of this change on negotiations and litigation (i.e., towards collaboration, consultation, and engagement) will continue.

The ECLA is an enabler that allows the Minister to enter into and renew non-competitive contracts with CFNs for negotiations with Indigenous parties, and CDs and EWs required for litigation. There remains a need for the department to have a set of flexible procurement tools and as an enabling authority, the ECLA serves as one of the mechanisms to appoint external negotiation and litigation resources, noting that over the evaluation period, the authority was not the only contracting enabler used for CFNs, CDs and EWs, however, the analysis of the objectives, roles and responsibilities of those other contracts were not within the scope of the evaluation.

As the policy landscape has shifted, CFNs, CDs, and EWs have been expected to be more sensitive to and comfortable working in the context of reconciliation. One of the ways to achieve this is by diversifying the contractor base to be more reflective of Canadian society, and more inclusive. When working with Indigenous peoples, there is an obvious benefit to source contractors from the same communities as those being engaged through negotiation or litigation. While the ECLA has not measurably contributed to GBA Plus goals over the evaluation period, it has potential to do so by recruiting and retaining contractors from diverse communities, and help to overcome the hesitancy among Indigenous peoples to represent the Crown.

Design and Delivery: Delivery Structures and Governance, and Diversity and GBA Plus

The core characteristics of the ECLA, viewed by respondents as a rapid, sole source, and high contract limit procurement arrangement, have been important factors facilitating the achievement of the authority's stated outcomes and departmental results. The authority has enabled the Minister to rapidly deploy CFNs, with the appropriate credibility, status, experience, and knowledge, which signals Ministerial commitment to Indigenous parties.

External resources appointed through ECLA have brought fresh perspectives to files and reduced the requirement for direct engagement by senior management, so that interventions at negotiation tables can be more judicious, strategic, and impactful. It is arguable that this result could be even greater if the contractor base is diversified to be more reflective of Canadian society.

The ECLA has been managed in a similar fashion as a program with a robust management framework, also widely viewed as an important factor that has facilitated the achievement of the ECLA's stated outcomes. The authority is an enabler to implement policies of business lines, not a program in and of itself. This may explain the approach to the ECLA by the procurement hub, as compared to other procurement arrangements. The ECLA is entirely managed and administered by programs, with minimal involvement of the procurement hub. The procurement hub executes a contracting strategy developed by their business line clients, and does not exercise an oversight or compliance function. An innovative approach in which the procurement hub is positioned as a centre of expertise could ensure consistent and compliant application of the Contracting Policy while supporting business lines through the development of an optimal procurement strategy to meet their policy goals.

The transformation of the department has seen some unintended consequences regarding the ECLA, with an erosion of corporate memory regarding the authority, interrupted communications across the dispersed litigation teams, questions about the ECLA guidelines to appoint CDs and EWs, and some confusion regarding roles and responsibilities. Decentralization has highlighted the need to ensure that the ECLA management framework is consistent and clearly understood (e.g., through up-to-date documentation and guidelines) across the department.

The reportedly limited pool of appropriately qualified and diverse CFNs, CDs, and EWs is a concern, particularly as demands have increased among some business lines and are expected to increase as the policy landscape shifts and initiatives, like reconciliation, gather momentum. A more explicit GBA Plus focus may help to address this shortfall, by recruiting and retaining contractors from diverse communities, and help to overcome the hesitancy among Indigenous peoples to represent the Crown.

As noted above, while the ECLA has the potential to support GBA Plus goals of promoting equality, diversity, and inclusion, this has not occurred over the evaluation period, which is a widely recognized shortfall.

Effectiveness

There is a noticeable misalignment between the ECLA outcomes and performance indicators, with no targets in some cases and unavailable data.

In terms of the short-term outcome "Hiring and retaining of CFNs, EDs and EWs", the ECLA was used for the majority of CFNs, CDs, and EWs appointments by CIRNAC over the evaluation period. TAG was the greatest user of the ECLA for CFNs and CDs, and RPS for EWs. As negotiation files tend to continue from one year to the next, CFNs were retained year-over-year to ensure continuity, with only a handful of new contractors joining the roster over the evaluation period. Similarly, CDs and EWs tended to be retained in the case of multiyear files. 

The indicator for the medium-term outcome "Re-engaging in a renewed nation-to-nation process with Indigenous peoples" is "CFNs, CDs, and EWs deliverables submitted as per contractual obligations". This is an example of the misalignment noted above, and no data was available to directly assess performance. Based on the remarks of key informants, the repeat appointment of CFNs, CDs, and EWs, and review of a sample of CFN performance appraisals, contractual obligations have been met and cost-effective contributions have been made to the progress of negotiation and litigation files, which in turn has contributed to re-engaging in a renewed nation-to-nation process with Indigenous peoples.

The indicator for the long-term outcome "A renewed relationship with Indigenous peoples based on the recognition of rights, respect, co-operation, and partnership" is "Agreements reached between Indigenous communities and government organizations on Section 35 assertions, including self-government rights and other processes that support reconciliation". Again, data was unavailable to directly assess performance, although the same inference as the medium-term outcome could be made on the importance of the ECLA as an enabler in support of this outcome.

The authority, however, is not a program in and of itself, but an enabler to implement policies of business lines. Given this, the requirement to develop a performance measurement framework and monitoring for one of many procurement arrangements appears out-of-place.

Efficiency and Economy

The ECLA is widely viewed as the most economical and efficient procurement arrangement available to appoint CFNs, CDs, and EWs, however, a comprehensive analysis of alternatives to the ECLA has not been conducted.