Sudbury

Robinson Huron leadership asks court to cancel upcoming review of $510M legal fees in annuities case

The group that pursued litigation on behalf of 21 northeastern Ont. First Nations says an Ontario court is undermining Anishnaabe sovereignty by ordering an assessment of the legal fees paid in a $10-billion settlement.

They say a court assessment of the legal fees is a challenge to First Nation sovereignty

A banner that reads Robinson Huron Treaty Litigation Fund against a wooden banner.
The Robinson Huron Treaty Litigation Fund pursues the historic annuities case involving 21 northeastern Ontario First Nations. (Aya Dufour/CBC)

The organization spearheading the Robinson Huron Treaty annuities case will be asking an Ontario court next week to cancel the upcoming assessment of the fees paid to the lawyers that helped achieve a $10-billion settlement in 2023.

A judge ordered a review of the $510-million legal bill last fall after two of the First Nations represented by the Robinson Huron Treaty Litigation Fund (RHTLF) called the fees into question and launched a legal challenge of their own.

The judge agreed with Atikameksheng Anishnawbek and Garden River First Nation by saying that too many people were impacted by the legal fees for them not to have been assessed by an independent party. 

The court was meant to scrutinize the legal fees this spring, but that hearing was recently rescheduled for September. 

That is, if the RHTLF doesn't succeed in its efforts to cancel the assessment process before then. 

The organization will tell the court next week that a review of the legal fees shouldn't go ahead because it could impact Anishnaabe sovereignty, the governance of the RHTLF, and its ability to advance the annuities case.

In documents, the RHTLF argues that by ordering an assessment, the judge interfered with Anishnaabe governance and decision-making. 

It says 17 out of the 21 First Nations voted in favour of the legal fees last spring and that all protocols were followed. 

"All but two trustees in attendance were satisfied with the fees and did not wish the RHTLF to assess [them]," reads the factum to the divisional court.

During those legal fee meetings, lawyers said they would cut their bill by half and would set $255-million aside for the First Nations to pay for things like future litigation costs and language preservation. 

However, in Garden River and Atikameksheng's view, that still amounts to a total $510-million in legal fees as lawyers get their say on how the money will be spent. They argue the legal team should be paid $44-million.

The legal fees are based on an agreement reached in 2011, when the RHTLF lawyers agreed to be paid half of their usual rate in exchange for about 5 per cent of a final settlement.

There was pressure to approve fees : chief

Atikameksheng First Nation Gimaa (chief) Craig Nootchtai argues that his fellow trustees were under some pressure to approve the fees last spring.

He says that before a vote could take place, two of the lawyers told the 21 First Nations that an independent assessment of the legal bill could potentially delay the distribution of the $10-billion settlement, and could put future annuities negotiations at risk. 

The distribution of the settlement did go ahead as planned last August, despite the court challenge over the legal fees. 

Atikameksheng and Garden River First Nations say they ultimately hope that a court assessment will reduce the lawyer fees, making more settlement money available to the 21 First Nations and their members.

A man and woman standing in front of a podium with flags in the background.
Atikameksheng Anishnawbek Gimaa (Chief) Craig Nootchtai, left, and Garden River First Nation Ogimaa Kwe (Chief) Karen Bell both question whether a $510-million payout to lawyers who litigated the Robinson Huron Treaty Fund is reasonable. (Aya Dufour/CBC)

However, for the RHTLF, the review brings up key issues of governance. It implies that the settlement funds were assets of the organization, thereby giving thousands of people the ability to request reviews. 

"[It] has undermined the very purpose for which the RHTLF was created," reads the factum. 

In the view of Atikameksheng and Garden River First Nations, though, these arguments are tactics to delay the inevitable. 

They intend to tell the court next week that the RHTLF's reliance on "technicalities [...] belies the elephant in the room : the Legal Fees are so detached from the established jurisprudence that no court could ever approve them."