A judge’s decision to cut the Robinson Huron Treaty legal team’s fees is “a win for fairness, transparency and good governance” and “reminds us that our nations will always stand up for what is right,” said Garden River First Nation chief Ogimaa-Kwe Karen Bell.
The two Robinson Huron Nations who challenged the cost, Atikameksheng Anishnawbek and Garden River First Nation (near Sault Ste. Marie) announced their win amidst ceremony on Oct. 30,
Now the work begins to get the more than $480 million in funds back in the hands of the RHT beneficiaries.
Atikameksheng Chief Gimaa Craig Nootchtai told the press that he would continue to “press that the funds be returned to the beneficiaries as quickly as possible.”
Hosted at the Dan Pine Healing Lodge in Garden River, Nootchtai expressed his gratitude to the lawyers who argued the case, those who travelled to view the proceedings, and to the balance of the band leadership and elders for their work behind the scenes.
Released Oct. 29, the 48-page decision of Justice Frederick Myers features praise for the work of the lawyers in obtaining the historic $10 billion Robinson Huron Treaty annuities settlement. settlement, but strong words of the fees they charged, which he slashed by $487 million.
From $510 million —and later, with $255 promised back to the 21 First Nations for cultural development — the Robinson Huron Treaty Litigation team will now receive a bill for $23 million.
It was Nootchtai who first filed a motion with the Robinson Huron Treaty Litigation Fund (RHTLF) to challenge the legal fees, with Garden River’s Bell seconding.
At the event, he embraced her and thanked her for her support. “I really, truly felt that our ancestors were with us,” he said. He said it was “tough standing up.” and asking for more information and discussion about the fees, but “It's about being transparent, being accountable, and to determine what a fair and reasonable legal fee is.”
He said it was “particularly important because of the way the settlement funds were distributed, the first, or at least one of the first payments, was to the lawyers.”
Nootchtai is a descendant of Chief Shawanekezhik, who signed the treaty on behalf of the Atikameksheng Anishnawbek, and said that fact made him not only take his role as seriously as he could, but to consider the spirit of the treaty itself.
He said the legal team did a “great job” not only in representing the beneficiaries, but in respecting the principles of Anishinaabe law that were brought up there during the hearing.
“And that's tough, right? We live in a society where we really have our feet in two doors: we have our Anishinaabe law, and we also have this European society that we do have to follow as well. And so they did a fantastic job in helping us navigate through that,” said Nootchtai. “But in the end, this was about honouring an agreement.”
In turn, Bell thanked Nootchtai for his willingness to stand up.
“When you have 21 Chiefs and trustees and many other technical people in a room, you put a motion on the floor to speak about the legal fee, with the seconder as Garden River First Nation, and then there were crickets,” she said of the silence that followed the act.
“It's very, very disparaging when you know that you're the only two people standing up in a big forum like that and not being supported by your fellow councillors. And we were only asking for fairness across the board and to be transparent.”
Nootchtai v. Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors
The decision is the result of the challenge by two First Nations under the treaty, Garden River First Nation and Atikameksheng Anishnabek, whose counsel argued the case before Ontario Superior Court Justice Frederick Myers Sept. 29 through Oct. 3.
For a detailed review of the legal arguments in the case, see Sudbury.com’s story here.
The decision featured a full discussion of the relevant case law and assessment of the risk assumed by the lawyers, as well as compliments for the efforts of the legal team in obtaining the settlement.
“Through its sustained, creative, and excellent efforts, over some 17 years, the Legal Team engineered a settlement that is as historic as it is transformative to the beneficiary First Nations and their members, reads the decision. “The Legal Team did great legal work. Its member lawyers represented the clients zealously, resolutely, passionately, and with extraordinary success.”
Myers wrote that apart from the legal fees, the lawyers “acted in the best traditions of the independent bar of Ontario to bring access to justice to clients who had been unable to obtain their fair measure of civil justice for more than 150 years.”
However, he took issue with just how much they wanted to be paid for their efforts.
“In this case, the Legal Team is seeking generational wealth at the expense of the 40,000 beneficiaries whom they serve,” wrote Myers. “That is not reasonable and it shines no honour upon them.”
Justice Myers also called attention to “the facts that the funds are coming from (or will be going to) the beneficiaries” and noted that this is especially difficult when 15 of the 21 First Nations under the Treaty would receive less than the lawyers.
That fact is one that “ would undermine the integrity of the profession,” he wrote.
He also broke down the numbers if the fees were based on billable hours. A fee of $255 million — half the fee amount, as the lawyers had promised the other half would go back to the nations as a gift — works out to just over $3,900 per hour for every billable hour worked by all counsel, Myers wrote. “There is no precedent or principle on which that can be found to be a reasonable value for legal services rendered in 2007 or 2025.”
At the centre, repeated Myers was the treaty beneficiaries losing out on the money. “The recovery from a lawsuit, whether by settlement or judgment, belongs to the clients,” he wrote. “Lawyers are not entitled to a percentage of the clients’ recovery amounting to a windfall of huge fees in an amount that is unrelated to the value of the professional services rendered.”
Next steps for the Robinson Huron Treaty Annuities claim is what’s known as the go-forward negotiations, the hearing to determine what the $4 treaty amount will be raised to. Atikameksheng has indicated they will proceed on the negotiations with their own legal representation.
Jenny Lamothe covers vulnerable and marginalized populations, as well as housing issues and the justice system for Sudbury.com.