Judge reserves decision on review of $510M in lawyers' fees for Robinson Huron treaty litigation settlement

Lawyer on behalf of 2 member First Nations describes fees as ‘grossly inflated’

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

CBC Indigenous: A judge has reserved decision on a challenge of the fairness of the $510 million being paid to the lawyers who argued the landmark $10-billion Robinson Huron treaty annuities settlement.

At the Ontario Superior Court hearing Tuesday in a packed Toronto courtroom, as many as 1,000 people watched virtually at one point.

Two of the 21 member nations represented by Gimaa (Chief) of Atikameksheng Anishnawbek Craig Nootchtai and Ogimaa-Kwe (Chief) of Garden River First Nation Karen Bell brought the case, saying they feel the legal fees need to be reviewed and assessed for reasonableness.

The Robinson Huron Treaty Litigation Fund (RHTLF) settled with Canada and Ontario after a 17-year fight for increased annuities.

Settlement reached last year

Under the 1850 treaty, 21 First Nations shared their land north of Lake Huron in exchange for a promise of payments based on the wealth produced by the land.

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

A map of the treaties. — The Robinson-Superior and Robinson-Huron Treaties were negotiated between the First Nations people living around Lake Superior and Lake Huron and the Crown in 1850. (Library and Archives Canada)

The First Nations fought that, and last year reached a $10-billion settlement with Canada and Ontario for retroactive annuities to be dispersed according to a formula to the member nations starting as early as Aug. 9.

The law firm that brought about the settlement is Nahwegahbow Corbiere Genoodmagejig, based in Orillia, Ont.

The agreement with the RHTLF is to pay $255 million to the lawyers, with another $255 million set aside in a fund that they will use to advocate for First Nations.

Michael Rosenberg, lawyer for Nootchtai and Bell, said there was never a process to negotiate legal payments that would have allowed debate within the community. He called them “grossly inflated.”

He said that instead, there was pressure to approve the fees to get distribution of the settlement out to First Nations.

Rosenberg also argued Nootchtai tried to convince the Robinson litigation committee on two occasions to get an independent legal opinion on the amount being paid to the lawyers, but was voted down.

Instead, he said, the trustees asked their own lawyers if the fees were reasonable and the lawyers discouraged assessment of their own bill, which he argued amounted to a conflict of interest.

As a rule, Rosenberg suggested a reasonable base fee for the work done by the lawyers was $11 million and the provincial law would have been to multiply that by four to reach a total of $44 million.

He said those rules were in place to govern fair and reasonable payments to lawyers in “megafunds” cases.

Independent assessment of legal fees sought

Awarding $510 million in the litigation case would be an overpayment of $466 million, according to Rosenberg, who said it would be paid out of the fund and shrink the amount going to beneficiaries.

He said he is simply asking the Supreme Court judge to direct the trustees to seek an independent assessment of the fees so the fund’s lawyers can explain why their fees are fair and reasonable.

At no point did anyone allege wrongdoing.

Peter Wardle, lawyer for the RHTLF committee, said the court has no role to intervene in the matters of sovereign nations.

He said the trustees followed proper procedures in considering Nootchtai’s motions and gave them due consideration before voting against them.

Wardle added the individual annuitants are not required to pay the bill and have no ability to seek an assessment of legal fees. He said it was the RHTLF that retained Nahwegahbow Corbiere and the lawyers acted for the trust, not individual First Nations

The money for the fees are not trust assets and individual annuitants have no right to them, Wardle added.

He also said there was discussion of Anishinaabe law, and honouring commitments and reciprocity in compensating the lawyers during extensive discussions among trustees on whether to seek independent legal advice.

There were also arguments that the applicants did not have proper standing to bring the challenge

Justice Jana Steele said she hoped reserving her decision would not hold up the distribution of the trust assets beyond the $510 million in question, but didn’t indicate when she may make the ruling.