Indigenous drummers supporting the Garden River First Nation – one of the First Nations that challenged lawyers' fees in the Robinson Huron Treaty settlement – at the entrance of Ontario Legislature, May, 2023. Garden River Chief Karen Bell says the trustees faced pressure from the legal team to approve the amount of the fees.Chris Young/The Canadian Press
A legal team that earned just over half a billion dollars for 17 years of work winning a landmark settlement for a group of Ontario First Nations says it is considering an appeal of a court judgment that slashed their fees to $40-million.
Brian Gover, a lawyer for the legal team that negotiated the $10-billion settlement for Indigenous groups covered by the Robinson-Huron Treaty, said the ruling by Ontario Superior Court Justice Fred Myers is patronizing and ignores the careful negotiations that went into it.
“Justice Myers’ decision continues a centuries-old narrative of First Nations being incapable of making informed decisions for themselves,” Mr. Gover said in a statement.
“An appeal of Judge Myers’ decision is being contemplated. It would address his central findings as well as several negative inferences made about counsel,” the statement said. “Any suggestion that the First Nations negotiators were naive or misled is offensive.”
The Supreme Court of Canada concluded that since 1874, the Crown had failed to increase the Robinson Huron Treaty annuity payments to the nations, despite the treaty’s promise to do so.
The $10-billion out-of-court settlement was reached in 2023 between the First Nations and the Crown, consisting of both Canada and Ontario.
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Among the lawyers arguing for the First Nations were members of an Indigenous law firm.
Under the 2011 terms of a partial contingency fee agreement, lawyers for the Robinson Huron Litigation Fund acting on behalf of the 21 participating First Nations were entitled to a 5-per-cent contingency fee.
That worked out to $510-million, but Justice Myers ordered the fee reduced to $23-million, in addition to the $17-million already paid to the legal team.
“A lawyer’s professional retainer is not a lottery ticket offering a bonus prize of generational wealth to the lawyers if the clients hit the jackpot and win a mega-award,” he wrote in the decision last week.
In April, 2024, the majority of trustees, including 19 of the 21 nations, approved the proposed $510-million in legal fees, with half of that being “gifted” back to the First Nations.
“[The fund] was to be used for a variety of programs and services that would enhance their way of life and the retention of the Anishinaabe language and culture. In the wake of Judge Myers’s decision, it is far from clear how those planning commitments will be affected,” the statement from Mr. Gover said.
Two of the 21 First Nations took the legal fees to court last year, arguing that the payment arrangement was reached under coercive terms.
Chief Karen Bell from Garden River First Nation, who along with Chief Craig Nootchtai of Atikameksheng Anishnawbek First Nation, asked the Ontario court to review the fees.
Ms. Bell told The Globe and Mail that the trustees faced pressure from the legal team to approve the amount, creating a false sense of urgency.
She said they were met with threats from members of the legal team that they would quit and were also warned that the flow of money to recipients could be delayed should they seek independent legal advice related to the proposed legal fees.
Justice Myers concluded that the $510-million fee was unreasonable, despite the “extraordinary success” of the legal team that included six lawyers from the First Nation-owned law firm Nahwegahbow Corbiere Genoodmagejig.
He agreed that the lawyers are entitled to fair and reasonable compensation for its years of work that undoubtedly paid off beyond anyone’s expectations.
“The legal team engineered a settlement that is as historic as it is transformative to the beneficiary First Nations and their members.
“The $10-billion settlement achieved represents a degree of success beyond anyone’s realistic assessment of the likely outcome of the litigation when it was first proposed. … And that is the nub of the issue that is the subject of this proceeding and this decision.”
But Justice Myers concluded that the fee was “neither fair nor reasonable.”
Mr. Gover said in his statement that the Robinson Huron nations will benefit forever from the work of the legal team and that it’s “impossible to fully quantify the financial benefits to the First Nations, but they will be enormous.”
The case has added to the growing turmoil within the Robinson Huron territory where member beneficiaries are launching their own litigations against chiefs and councils over payment distributions in a continuing conflict over individual and collective treaty rights.
Some members believe that they are entitled to 100 per cent of the compensation now, while some leaders are keeping portions in trust for future investments and generations.
Regional Chief Scott McLeod addressed leaders from the Anishinabek Nation in Sault Ste. Marie this week, including those from the Robinson Huron First Nations.
He said money is not worth fighting over.
“What’s really important is in this room right here, and it’s at home in our nations, and we can’t let money blind us to that.
“Yes, there are things owed to us, and yes, there are things we can do with that money, but let’s not let it tear us apart.”