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.Chris Young/The Canadian Press
The legal team behind a landmark $10-billion treaty compensation settlement is appealing a recent Ontario court decision that found its $510-million legal bill was unreasonable.
The court slashed the lawyers’ fee down to $40-million.
The appeal from the team of five Indigenous lawyers comes after a decision by its clients, the Robinson Huron Litigation Fund and 21 Anishinaabek signatory nations of the Robinson Huron Treaty, to not appeal the ruling, despite having agreed to the fees more than a decade ago.
The legal team says its appeal highlights the integrity of the process undertaken by its clients to select the Indigenous lawyers and their fees.
“The Legal Team engaged in many months of negotiations about the terms of their written retainer agreement,” court documents state.
“The Notice of Appeal emphasizes that the Chiefs and trustees involved in reaching the fee agreement were experienced negotiators who drove a hard bargain and were well aware of what they were doing over the entire course of the litigation.”
Legal team behind $10-billion First Nations settlement seeks appeal after court cuts fees
The group of lawyers, two of whom are from the Robinson Huron Treaty territory, said the judge “failed to appreciate the enormity of the legal risk involved as well as the sanctity of Anishnaabe culture and values.”
The $10-billion out-of-court settlement was reached in 2023 after 17 years of proceedings. The agreement was between the First Nations and the Crown, consisting of both Canada and Ontario.
The legal team argues their work “has laid the foundation for billions of dollars more to be paid to future generations.
“The lower court’s decision to drastically reduce the fees owed to the legal team was made despite the fact that 19 of the 21 First Nations approved payment of the fees owed under an agreement negotiated 13 years earlier,” court documents state.
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 ruling paved the way for the $10-billion, out-of-court settlement.
Chief Karen Bell from Garden River First Nation, along with Chief Craig Nootchtai of Atikameksheng Anishnawbek First Nation, asked the Ontario court to review the legal fees last year, saying trustees were under extreme pressure from the legal team and beneficiaries concerned with delays in individual distribution payments.
Under the 2011 terms of a partial contingency fee agreement, the legal team was entitled to a 5-per-cent contingency fee on any settlement amounts above $100-million, and 15 per cent on the first $100-million. The lawyers also agreed to a 50-per-cent discount on their “already discounted rates.”
Ultimately, that worked out to $510-million, half of which the legal team agreed to donate to a trust fund for “collective Anishinaabe purposes,” according to court documents.
Earlier this month, Justice Fred Myers ordered the fee reduced to $23-million, in addition to $17-million already paid to the legal team.
The legal team says its achievements and “innovative work” include gathering the evidence of oral history to “support the breach of treaty claim against the Crown and to provide the Anishinaabe perspective about events from 175 years ago.”
“The Legal Team’s fluency in Anishinaabemowin (the language of the Anishinaabe people) and their having grown up as a part of Lake Huron Anishinaabek communities were essential to establishing trust with community members and to ensuring the authenticity, credibility and reliability of the Elders’ evidence.”
Ms. Bell told The Globe and Mail she’s pleased that the litigation fund and other chiefs decided not to appeal but is worried the legal team’s appeal will affect future negotiations for increased annuities.