5.1.1 Governance and Common Practices
Governance and oversight arrangements for the management of ATR activities are the foundation for all other components of internal control. Governance bodies should receive sufficient, complete, timely and accurate information to maintain an effective oversight role, and to ensure that there is adequate challenge and discussion on all matters related to Additions to Reserves. Without adequate governance and oversight arrangements in place, there is increased risk of a lack of accountability, challenge, and discussion of significant issues. For Additions to Reserves, where processing activities are managed by each Region, effective governance arrangements should help to ensure that the ATR process is consistently interpreted and applied from Region to Region, and that results of performance from all Regions are reviewed regularly so that inconsistencies can be identified, and remedial actions taken. Ultimately, effective governance is necessary to ensure the achievement of expected results and the monitoring of progress against stated objectives.
The audit expected to observe that governance arrangements in place in each Region, and at Headquarters, are sufficient to evidence that AANDC has established effective oversight bodies that meet regularly and receive key information to allow for effective monitoring of the ATR process.
Regional staff who are responsible for ATR activities and manage the ATR process communicate and work closely with First Nations to answer questions and support First Nations throughout the ATR process. Regions are diligent in reviewing ATR proposal submissions and ensuring information required for approvals is provided and completed appropriately. Supporting documents for decisions taken are well maintained in ATR files (e.g. supporting Band Council Resolutions, approvals, reviews, correspondence, etc.).
In all Regions, management oversight of ATR files is accomplished through regular formal and/or informal management/staff meetings. Regionally, committee structures exist to formalize the technical review and approval of ATR files, and these committees receive sufficient information on individual ATRs requiring their review. The number of committees, the formality of the documentation of their terms of reference and of their proceedings, and the degree to which the committees participate in the oversight of ATR processing within regional offices varies.
All four Regions included in the scope of the audit had, at one time, a governance committee dedicated to oversight of ATR file management. These ATR Review Committees (ARCs) were responsible for the review and approval of ATR proposals at the Approval-in-Principle (AIP) stage, and again just prior to sending the completed ATR file to Headquarters for final approval (i.e. either by Ministerial Order or by Order-in-Council).
The audit found that only one Region still retains a dedicated ARC that has documented terms of reference, and meets regularly. ARCs in two other Regions have become 'virtual' committees. These virtual committees review and approve files, but do not meet as a group, unless to discuss significant issues. Records of decision are represented by sign-off on the routing slip attached to the file under review. In the fourth Region, the ARC was discontinued in 2011; in its place, responsibility for ATR review and approval has been included in the scope of the Regional Operations Committee. Terms of reference for ATR governance committees were found to be non-existent, or out of date. Only one Region has the terms of reference that had been updated recently (2010).
Nationally, AANDC Headquarters committees and working groups specific to ATRs are focused on the policy aspects of Additions to Reserves, and the revision of the ATR Policy in particular. Headquarters’ new role is not to review each individual ATR submission. The audit, however, did not find a governance committee or practice which existed to review and oversee the ATR process at a national level to help to ensure that the ATR process is consistently interpreted and applied from Region to Region, leading practices are shared, and results of performance from all Regions are reviewed regularly so that inconsistencies can be identified, and remedial actions taken. The audit recognizes that some of these coordination and sharing responsibilities are to be assumed by the newly established ATR Support Centers.
A necessary condition for the establishment of useful national performance measures, job tools, training materials and information systems is the existence of a common ATR process across all Regions. Sufficiently similar processing steps, recording practices, and documentation of processing steps in all Regions is necessary to perform analysis of the duration of key ATR processing steps and to enable the analysis and comparison of results among AANDC Regions.
Through file testing, the audit noted that the process step of satisfying third party interests takes, on average, the longest duration to complete in comparison to other key ATR process steps. In addition to having the longest average procession time, satisfying third party interests also has the largest range and variance in processing duration (e.g. 2 to 15 years), which interviewees noted makes planning and forecasting expected ATR completion difficult. This observation was consistent across all Regions visited.
While the audit found that the resolution of third party interests is consistently one of the key ATR challenges, the audit also found that among the four Regions in scope for the audit, there are significant differences in ATR processing steps that make analysis of the duration of processing steps difficult, and reduce the value of comparisons of processing of ATRs from Region to Region. Some of these differences include:
- Tools to document planned actions, track progress, and record communications with stakeholders exist, but differ from Region to Region, and in some cases from Officer to Officer. The audit found limited common project management/file management tools in use by ATR management and staff to support the processing of ATR files and the documentation of key milestones in the ATR process varies by Region and by Officer.
- The audit found a wide variation in the involvement by AANDC in activities associated with initiating an ATR proposal and preparing documentation to support an ATR submission to AANDC. Activities in this initial phase are identified as the responsibility of the First Nation; however, in one Region, AANDC staff officers frequently advise the First Nation on requirements of the process, then feel obligated to assist First Nation through all required steps. When documentation is not received from the First Nation on a timely basis, AANDC initiates follow-up conversations. In two other Regions, however, the audit found AANDC's involvement in the preparation of initial documentation was minimal prior to the receipt of complete (or nearly complete) ATR proposal.
- In several of the ATR files reviewed, the audit found that resolution of third-party interests were often the cause of long delays in file processing. Officers in all Regions described ATRs as unique; i.e. that no two ATR files are alike, including the requirements for resolving third party interests. In many cases, these issues involved extensive legal negotiations that included legal counsel for the First Nation and the third party, and from DOJ. The audit found that template agreements between parties were included in the legislated framework agreement that governs Treaty Land Entitlement (TLE) ATRs in Saskatchewan, and that these agreements have been accepted as a standard by legal representatives to the extent that these templates are also used in non-TLE cases in Saskatchewan as well. These standard agreements streamline the process of satisfying third party interests in Saskatchewan, compared to other regions where the terms of these agreements need to be negotiated every time third party interests are identified on a parcel of land. This is an example of a strong practice that should be discussed in a national ATR governance forum, and potentially leveraged elsewhere.
- The audit found that the efficiency of AANDC's management of an ATR proposal is also affected in two Regions by the expectation that the Region will provide funding (without a corresponding budget) and arrange for the survey of the parcel of land that is the subject of the ATR, and the title search to identify encumbrances on the land. In the other two Regions included in the audit, AANDC's role was only to ensure that a valid survey was included in the ATR proposal.
These factors are all important when considering how AANDC can improve measurement of ATR processing steps. Given the recent changes to the ATR process plans to increase the use of information management systems to support ATR processing (refer to Section 5.3.1), a clear and consistent definition is required for when AANDC’s responsibilities for an ATR actually begin and for when ownership for a particular task should start/end and who is responsible for completion.
Lastly, the audit found only one Region that used a procedural manual to assist staff. This manual was produced to support the implementation of a Treaty Land Entitlement framework agreement. A common, step-by-step procedural manual for the completion of ATR files was not in use among Officers in AANDC in all Regions. The audit found that the ATR portion (Chapter 10) of the Lands Manual was dated (2003), and its content combined policy and descriptions of processing steps, rather than providing step-by-step guidance to the reader. Headquarters noted that there are plans in place to update the ATR portion of the Lands Manual.
1. The Senior Assistant Deputy Minister (ADM) of Regional Operations (RO) should formalize and update regional governance practices and work with the Assistant Deputy Minister of Lands and Economic Development (LED) to develop a practice to share leading practices, establish common ATR processing steps and milestones, and report on the ATR process at a national level.
2. The Assistant Deputy Minister of Lands and Economic Development should continue updating the Lands Manual to better identify procedural steps.
5.1.2 Priority Setting, Risk Management and Performance Reporting
Managing effectively with limited resources requires that priorities must be set to ensure that efforts are directed first to the most important outcomes for an organization. AANDC Officers that manage ATR files should be aware of which files, or which type of file, is considered a higher priority by senior management at AANDC Headquarters. Effective performance reporting frameworks should address planned operating priorities, establish measures that are relevant to the process, and risks associated with achieving planned priorities should be identified and assessed.
In all four Regions, the audit found that limited national strategic or operating objectives concerning ATRs are received from AANDC Headquarters.
In all Regions, priorities for ATR processing are set as part of a bottom-up annual business planning process. Individual ATR files are prioritized, and annual objectives for the Region are set from these priorities. File prioritization is based on the judgment of ATR management and Officers; i.e. those files where progress towards a milestone (such as Approval in Principle) appears likely in the coming year, are identified as higher planning priorities. The audit found that ATR staff in all four Regions maintained their own prioritized lists of ATR files. In those Regions where a Treaty Land Entitlement (TLE) framework agreement exists (Saskatchewan and Manitoba), priorities and plans are driven by objectives set out in the agreements. TLE agreements set out targets in terms of number of acres to be converted to reserve, so that ATR plans and performance toward those objectives can be measured.
The audit also expected to find that performance measures and measurement strategies are in place, and that results of performance measurement are reported to ATR process stakeholders, who review performance measurement results to analyze, compare and explain variances between actual performance of the ATR process and planned results.
The audit found that performance is measured based on acres converted to reserve in three Regions, while the fourth Region sets objectives based on the number of ATR files completed. The audit found that performance results are measured and reviewed in each Region; however, not all Regions conduct an analysis to explain variances between actual performance of the ATR process and planned results. In one Region where a Framework Agreement exists, performance measurement and reporting is included in the implementation of the agreement. Work plans are circulated to stakeholders (including First Nations), progress against targets is reported, and variances are discussed. As the nature of ATRs becomes more complex (i.e. urban), and the average size of a parcel of land being added to reserve decreases (as land becomes more scarce), it will become difficult for the Department to continue to use acreage as a primary performance measure. In some Regions, Officers indicated that ATRs intended to enable economic development are perceived to receive more favorable and timely Ministerial approval which has led their office to highlight development possibilities in all ATRs, even though most files processed in that Region were categorized as legal obligations.
Finally, specific risks that may preclude the achievement of ATR objectives are not formally identified or formally mitigated in any of the Regions included in the audit. The approach taken to risk management is largely reactive, and each risk to an individual ATR is managed at the file level. The audit found that DOJ is heavily involved with most ATR files, and that legal risks encountered while processing an ATR file are usually referred to DOJ counsel for advice and direction.
3. The Assistant Deputy Minister of Lands and Economic Development should review performance measures for continued relevance to allow for more useful performance reporting across all Regions and support Senior Assistant Deputy Minister of Regional Operations in establishing clear priorities for processing ATRs, including identifying possible risks to the achievement of those priorities.