First Nations ask court to review $510M in legal fees paid in treaty annuities claim

Two First Nations in northeastern Ontario are disputing hundreds of millions of dollars in legal fees paid out for the litigation of a lengthy court battle that led to the historic $10-billion settlement for 21 communities in Robinson Huron Treaty territory over past compensation for treaty annuities.    

A June 7 application filed in Ontario Superior Court on behalf of Garden River First Nation and Atikameksheng Anishnawbek First Nation is asking that the $510 million in legal fees paid out to Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors for its work on the annuities claim be held in trust while the dollar amount is reassessed in the courtroom.

The application is also requesting the Rama, Ont.-based law firm “preserve all records of any kind related to the discussion, negotiation, review, invoicing, and approval of the legal fees.” 

“We’re very grateful for the results achieved by the lawyers, and we believe that they should be well rewarded for their services,” said Atikameksheng Anishnawbek First Nation Chief Craig Nootchtai, during a news conference held in that community Monday. “But we do not agree that a $510 million legal fee is fair and reasonable.

“We also want the courts to determine what is fair and reasonable.”

Chiefs and trustees for both communities say a ruling in their favour will result in more settlement funds being distributed to all 21 First Nations involved in the Robinson Huron Treaty annuities claim, which concluded last year with Canada and Ontario both agreeing to pay out $5 billion each in past compensation.  

In 2018, Ontario Superior Court Justice Patricia Hennessy ruled that the Crown had an obligation, under the 1850 treaty, to increase annuities as wealth generated from the land grew over time, so long as the Crown can do so without incurring a loss.   

The historic settlement provides past compensation to Robinson Huron Treaty beneficiaries after not seeing an increase to annual treaty payments for a period of nearly 150 years, as wealth generated in the territory through resource revenues from the mining, forestry and fishing sectors continued to grow. 

The annual treaty payments to Anishinaabe beneficiaries, also known as annuities, have remained at $4 per person since 1875. Prior to that, the annuities were roughly equivalent to $1.60 per person. 

Chiefs of Garden River and Atikameksheng, speaking together during a joint news conference, both stressed the legal action being taken will not delay the distribution of settlement dollars to First Nations, which is anticipated to take place this August.

“The legal fees are a separate issue — they are assigned from the pool funds that are currently being held in trust,” said Nootchtai. “We have asked the courts, in our court application, to issue direction to the Robinson Huron Litigation Fund to not delay the distribution.” 

Garden River First Nation Chief Karen Bell said the application for a judicial review comes after repeated attempts to “try to get some accountability” and transparency during meetings between Robinson Huron Treaty chiefs and trustees with respect to how the lawyers for the Robinson Huron Litigation Fund arrived at their dollar figure for legal costs.

Bell said that both herself and Nootchtai were vocal in expressing their concerns around the legal bill and requested a breakdown of expenses during a recent meeting of chiefs and trustees, but that information was not supplied to them at the time.

“We did not want to take this route,” Bell said. “We felt it necessary when we got roadblocked at our meetings — if we had not asked and requested and demanded a review, this would’ve been passed, and the law firm litigating this for many years would have just got the money that they asked for, without any consultation.”  

Chiefs and trustees for both First Nations feel the legal fee is “extremely over the top,” considering that First Nations could use a portion of the settlement to shore up underfunded programming and services, Bell told members of the media and community members who attended Monday’s news conference virtually. 

Nootchtai added that the law firm has already been paid more than $10 million in legal fees to date for its work on the annuities claim. 

“$510 million to a legal fee is unprecedented. It’s never happened in this country — in any history for this country since Confederation — and we think it’s too much,” Bell said. 

So far, none of the remaining 19 First Nations involved in the annuities claim have lent their support to the court action against Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors.  

“But we believe by filing this application, we will be getting some additional support from the other nations,” Nootchtai told reporters. “We believe that just moving this forward, we’ll see some additional support.”

SooToday has reached out to Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors and the Robinson Huron Treaty Litigation Fund for comment.