Court to assess $510M in legal fees related to Robinson Huron Treaty annuities case

A judge has ruled in favour of two First Nations in northern Ontario that have argued $510 million in legal fees related to the $10-billion Robinson Huron treaty annuities settlement should be assessed.

Justice Jana Steele says the court will conduct an assessment of the lawyers' fees.

Atikameksheng Anishnawbek and Garden River First Nation challenged the $510-million legal billearlier in May. Both communities are part of 21 First Nations involved in the landmark annuities case.

"We feel gratified by the court's decision in favour of Atikameksheng Anishnawbek and Garden River First Nation," said a joint statement from the two First Nations. "We are relieved and feel vindicated."

Legal fees were never assessed by an independent party

The annuities case focuses on a clause in the Robinson Huron Treaty of 1850 that promised the annual payments to members of the First Nation signatories would increase according to the wealth produced by the land.

The Crown unilaterally capped those payments at $4 per person, per year, in 1874.

The First Nations fought that, and last year reached a $10-billion settlement with Canada and Ontario for retroactive annuities, which were dispersed to member nations starting on Aug. 9.

It took more than a decade of litigation to arrive at a settlement. To help pay for the legal battle, the Robinson Huron Treaty Litigation Fund (RHTLF) entered into a partial contingency agreement with its lawyers in 2011.

In this agreement, lawyers with the firm Nahwegahbow Corbiere Genoodmagejig agreed to lower their fees in exchange for five per cent of the final settlement if they successfully argued the case.

The RHTLF never sought or received independent advice on this partial contingency agreement.

In May, Atikameksheng Anishnawbek Gimaa (chief) Craig Nootchtai asked his fellow RHTLF trustees to seek independent advice on the $510-million legal bill,but his motion was voted down.

The legal fees were paid out in early May, with $255 million going directly to the law firm, and another $255 million set aside to use for future litigation, as determined by the Nahwegahbow Corbiere Genoodmagejig lawyers.

In her decision, Steele says although the fees have already been paid, there are special circumstances in the case that warrant an assessment.

She said "the only opinion regarding the fairness and reasonableness of the legal fees" that the RHTLF obtained was from their own lawyers, "the parties who would benefit from the payment of the sizable partial contingency fee."

She points outthe fees will have an impact on the amount of the settlement allocated to each First Nation and their members.

Steele also said there are a significant number of people impacted by the decision not to seek independent advice on the partial contingency feeand "failure to have the legal fees reviewed by the court may erode the public confidence in the administration of justice."

Elder says decision erodes trust in lawyers who argued case

Allan McDonald, an elder of Henvey Inlet First Nation who has lived in Garden River for the past three decades, saidhe was hoping the court would assess the legal fees.

"I agree lawyers should be paid for their work," he said. "And should they get a little bonus? Yes. But $500-million is more than what some of the communities were getting."

He saidhe reached out to several chiefs in the weeks before the matter ended up in an Ontario court, asking them to reconsider the partial contingency agreement.

"A lot of the chiefs were saying they just wanted to stick to the original agreement," he said. "But if the original agreement was not done fairly, I think you need to assess how it was set up that way and why it was set up that way."

McDonald saidhe would have expected the lawyers to charge their fees according to the seven grandfather teachings.

"To charge these fees to a group of people that have been taken advantage of for 170 years, to me it feels unfair," he said. "That money belongs to the people. Why does a law firm need $500 million?"

He added this matter has hurt the trust he had in the law firmand would make him hesitate to see them work on future treatycases.

"I mean, how can we trust they are not going to do this again?"

CBC has reached out to the litigation management committee of the RHTLF for comment and hadn'theard back by time of publication.

Earlier in April, RHTLF spokesperson Duke Peltier said that around the time the partial contingency agreement was signed, lawyers were expecting an eventual settlement to be in the millions, notbillions.

The 2First Nations hope legal fees are reduced

Atikameksheng and Garden River First Nation hope the assessment will reduce the amount of money being paid to lawyers.

"We will maintain our transparency and accountability in our fight for a reduction in the legal fees, which we hope will result in settlement funds being returned to the RHTLF and ultimately to all 21 RHT (Robinson Huron Treaty) Nations," both First Nations said in the joint statement.

The lawyers for these two communities previously suggested a reasonable base fee for the work done by the RHTannuities case lawyers was $11 million, and the provincial law would have been to multiply that by four to reach a total of $44 million.

In other words, they arguethe lawyers who took onthe annuities case on behalf of the RHTLF were overpaid by $466 million. Meanwhile, court documents show theywere paid more than$20 million in legal fees and disbursements throughout the litigation.

Steele will convene a conference on Wednesday to schedule the next steps to start the assessment process on the lawyers' fees.