Feds' legal management practices questioned

Page 3

An independent analyst's report on the way federal government departments have handled lawsuits filed by First Nations or individual Aboriginal people confirms many of the accusations Native leaders have levelled at the government in recent years.

A copy of Re-engineering of DIAND Litigation, obtained under freedom of information laws, was made available to Windspeaker. The report, compiled by Chicago-based consultants Arthur Andersen Worldwide, was commissioned by the Department of Justice (DOJ) and the Department of Indian Affairs and Northern Development (DIAND) in late 1997 and completed in June 1998.

It reveals that a climate of distrust existed between the government departments that led to poor communication and duplication of efforts. That, in turn, caused delays in dealing with the cases. The number of residential school compensation cases faced by the government at the time the research for the report was done was lower than 1,000 and represented a small percentage of the claims against the Crown. That number is now close to 10,000 and expected to reach 15,000.

Indian Affairs sources say the problems have been corrected as a result of the report's findings, but critics say damage has been done by the delays as many former students have died before their cases could reach the courts. At least one lawyer who represents residential school survivors doesn't believe anything has actually changed.

"I don't see any lessening of the red tape. If they're cutting it at all, they're cutting it lengthways," said Tony Merchant, a Regina lawyer whose firm represents close to half the residential school plaintiffs in the country.

A request for proposals to study the interactions of the two ministries was issued in July 1997, a year after Arthur Andersen Worldwide's Cynthia Munger made a presentation on behalf of her company to government officials.

The consultants interviewed employees of both departments. The findings add up to a report that has close to 200 pages.

A "core issue" identified by the report was the lack of trust.

"During the analysis, patterns began to emerge which indicated that an overall lack of trust, and in some instances, even respect, among members of the DOJ and DIAND could be sourced as one of the primary reasons why new processes, roles and accountabilities, even when implemented and assigned, do not result in changed behaviour or reduced workloads. We believe this lack of trust is a core problem that results in an inability to designate and rely on accountable parties to apply risk judgment and make timely decisions," the report reads on page 26. "A recurring theme from all interviews is the need to establish trust and teamwork between DIAND and DOJ. While individual interactions may work well, the overall relationship between the two departments is widely regarded as dysfunctional."

The report concluded that changing the way lawsuits against the Crown are handled by the departments is "not a choice . . . it is inevitable."

"All indications point to the need to re-engineer the way in which DIAND litigation is managed, processed and tracked," the report reads.

The consultants reminded Indian Affairs managers that the number of lawsuits against the government was growing at an unprecedented rate and that the cases were not being disposed of (either through out-of-court settlement or through a final court decision) anywhere near as fast as they were coming in. DIAND was also reminded that Gathering Strength had committed the government to changing its approach in dealing with First Nations to be more partnership-oriented and that recent Supreme Court of Canada decisions "have created a judicial environment that is more supportive of the First Nations' position."

Saying Gathering Strength demonstrates clearly that the Indian Affairs minister and cabinet want to improve relationships between the government and First Nations, the report suggests (in carefully written bureaucratic terms) tat the people in charge of managing lawsuits filed by Aboriginal people in DOJ and DIAND didn't seem to have taken the message to heart.

"One of the first steps in redesigning litigation is to thoroughly understand the motivations and needs of the adversarial party. To date, we do not believe that a uniform process has been put in place to understand the First Nations' position in terms of creative alternatives to resolve disputes. Using the Gathering Strength initiative as a blueprint, the next phase of the re-engineering initiative should incorporate a focussed initiative to integrate First Nations issues into dispute resolution strategies."

The report encourages DIAND officials to shift their focus from being managers to being leaders, and even provided dictionary definitions of the terms. Employees should be made aware of their duties and only report exceptional cases to their superiors, the report said, which would be a shift in attitude from the top-down approach employed at the time of the study.

The consultants also encouraged the DIAND litigation unit to change its approach from one of attempting to win or delay cases to one where the goal is to resolve cases through "organized dispute resolution initiatives" or "proactive negotiations."

DIAND was also urged to "eliminate the costly guess work of building strategies around conflicting assumptions" by asking Native people, in either informal or formal discussions, how their core needs can be met outside of a court.