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Two First Nations challenge ‘over the top’ Robinson-Huron Treaty Fund legal fees in court

Lawyers’ fee is $510 million

ROBINSON-HURON TERRITORY—The Atikameksheng Anishnawbek and Garden River First Nations are taking legal action, claiming that the agreed-upon five percent legal fees to Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors for handling the Robinson-Huron Treaty annuity lawsuit are unreasonable. The chiefs of the two communities argue that the 21 First Nations involved in the settlement have already paid millions in legal fees, often taking out loans to cover the costs. They have filed an application with the Superior Court of Ontario to reassess the fees.

Finalized last year, the Robinson Huron Treaty settlement aimed to address unpaid treaty annuities for 21 First Nations. These communities argued that the $4-per-person annuity had not increased since 1874, breaching the treaty as resource extraction projects on their land generated profits far exceeding their compensation.

Lawyers who negotiated the settlement are seeking $510 million in legal fees, stating that half of this amount would be used for additional treaty-related work, including further litigation and community projects. Payments to the beneficiaries are expected in August, raising concerns that this court application might delay the settlement distribution.

Chief Karen Bell of Garden River First Nation and Chief Craig Nootchtai of Atikameksheng First Nation have expressed satisfaction with the work done by Nahwegahbow Corbiere Genoodmagejig. However, the court application alleges that the lawyers tried to deter an evaluation of the legal fees during an April meeting, warning trustees that doing so would delay the settlement distribution. It also states that the lawyers cautioned trustees that rejecting the legal fees would cause them to “lose trust” in the Robinson-Huron Treaty Litigation Fund for not honouring the partial contingency fee agreement.

The other 19 First Nations have not yet officially supported the application, but Chief Nootchtai is hopeful they will as the process advances. Filed on June 7, the application requests that the firm “preserve all records of any kind related to the discussion, negotiation, review, invoicing and approval of the legal fees.” It also asks that the $510 million be held in trust until a resolution is reached.

The law firm has acknowledged the high legal fees and proposed cutting them in half, using the money to advocate for various Anishinabek initiatives. However, Chiefs Nootchtai and Bell suggested a legal review instead. The collective did not widely support this decision, feeling that the lawyers earned their share fairly. Some critics argue that chiefs and councils should not be dictated to about how $255 million should be spent and emphasize the need for proper due diligence on behalf of their communities.

This is not the first time law firms representing First Nations in settlement claims have faced scrutiny. Cindy Blackstock, a key figure in a Canadian Human Rights Tribunal case leading to a historic $40-billion class-action lawsuit against Canada for underfunding on-reserve child welfare services, raised concerns about the $55-million legal bill for the attorneys involved. Last November, she questioned why the approximately 300,000 victims would receive around $40,000 each while the lawyers earned significantly more. Lawyers argued that their fees could have been much higher under traditional retainer agreements.

On June 13, the Robinson-Huron Litigation Fund, responsible for managing the litigation, filed its own application seeking court direction. They stated, “Based on a 70 percent majority vote, the RHTLF entered into the contingency agreement with the RHT Legal Team. The RHTLF did not have the funds to undertake the litigation, so it explicitly chose the partial contingency agreement rather than the straight hourly retainer.”

The statement further claims that “The legal fees and distribution terms are detailed in the Compensation Disbursement Agreement, unanimously adopted by all Chiefs-in-Assembly on August 8, 2012. Additionally, each of the 21 First Nation Councils passed a Band Council Resolution to adopt this Agreement.” Despite the RHTLF’s decision to approve the legal fees, Atikameksheng and Garden River have filed a Superior Court application to challenge this decision. Chief Nootchtai previously accused the RHTLF Trustees of wasting trust assets by approving the fees. 

In response, the RHTLF’s Litigation Management Committee (LMC) has filed its own application seeking guidance from the Court.

This comes after two First Nations publicly disputed the $510-million lawyers’ bill incurred in the lengthy court case, which led to a historic $10-billion settlement for Robinson-Huron Treaty trustees and beneficiaries being struck with Canada and Ontario last year. 

Garden River First Nation and Atikameksheng Anishnawbek First Nation filed an application in Ontario Superior Court last week, requesting that the $510 million in legal fees paid out to Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors for its work on the annuities claim be held in trust while the bill for legal services is reassessed in the courtroom.  

The litigation management committee, in turn, has filed its own application, requesting direction from the court. 

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