Legal team successfully argued the past annuities case that was settled for $10B in 2023
APTN News: Discontent and criticism over the $510 million being paid to the lawyers who argued the Robinson Huron treaty annuities case is spilling into an Ontario court room.
Atikameksheng Anishnawbek and Garden River First Nation filed an application asking the court to review and assess the legal fees last Friday.
A similar (albeit separate) application is being filed today by the trustees from the remaining 19 First Nations in the Robinson Huron Treaty Litigation Fund (RHTLF).
It is not clear why two different applications were filed about the same situation. Angus Toulouse, spokesperson for the RHTLF, hopes “both cases will be heard at the same time.”
Both applications are asking the court to weigh in on whether the fees are fair and reasonable.
Chiefs want a more detailed breakdown of the legal fees
The lawyers have sought $510 million in legal fees to be paid out of the $10 billion settlement that was achieved last year.
That sum is based on the partial contingency agreement that was signed with the RHTLF in 2012, years before the case was first heard in court. In that agreement, lawyers accepted to be paid less in exchange for five per cent of the total settlement.
Lawyers told trustees they would keep half of the $510 million for themselves, and the other half would go to causes related to the Robinson Huron Anishnawbek, including current negotiations and potential future litigation.
A majority of trustees approved the legal fee proposal at an earlier meeting, but Atikameksheng Anishnawbek Gimaa (Chief) Craig Nootchtai disagreed with the amount and sought independent legal advice.
“The opinion we’ve received is that courts could potentially say they should get five times what they were already paid,” he said, mentioning more than $10 million has already been paid to the lawyers over the decade long litigation process.
He says attempts to obtain a detailed breakdown of the $510 million in legal fees went unanswered, and not enough time was given to review a report containing information before a vote had to take place.
The chief of Garden River First Nation Karen Bell also speaks of a lack of transparency.
“When we said, ‘Look, we’re not happy with the legal fee, can we have have a breakdown of how it came to that,’ there was no deep dive into it, there was no fulsome discussion,” she told CBC.
Will a court challenge delay the distribution process?
Both Bell and Nootchtai are adamant that the court challenge will not delay the distribution of the $10 billion settlement to the 21 First Nation signatories and the remaining treaty beneficiaries, slated to begin in the first week of August.
They have included provisions in their application stating that the funds at issue are limited to the legal fees, and nothing should affect the distribution of what remains of the settlement.
If the courts rule that the fees are not reasonable, Bell and Nootchtai want the difference to be distributed among the 21 First Nations.
Angus Toulouse, chief and trustee for Sagamok Anishnawbek, hopes the application brought forward by Bell and Nootchtai will be heard at the same time as the application from the RHTLF, as both seek guidance and direction on legal fees.
“We really hope the court can address this issue sooner than later, so there will be no interruption [of the distribution process],” said Toulouse.
Toulouse hopes the matter can land before a judge in the coming weeks.
“Our expectation is that the procedures and decision-making process was all in accordance with the trust indenture,” he said, adding he expects a judge will determine that all rules and procedures have been followed.
“We were battling this for 17+ years, I don’t know how many thousands of hours people have put towards getting this resolved, and we finally arrived at a final settlement,” said Toulouse. “I’m not sure why those two communities aren’t satisfied with the outcome.”
It could take weeks or months before a decision is issued
Mohsen Seddigh, Indigenous litigation expert with Sotos LLP, says the court will now look at the history of the case, the results achieved and the specific terms of the contingency fee agreement.
He says it’s hard to estimate how long it will take for a judge to hear the application and issue a decision.
“I would assume this is not a very straightforward application, but you never know,” he said. “The courts have been generally facing a backlog of cases, which has slowed things down.”
“Sometimes it takes time for the court to consider its judgment, so it may not be automatic or on the same day,” said Seddigh, saying he would guess the case would take months to hear rather than weeks.
“Unless the matter is urgent, there may be something presented to the court to fast track the issue.”
ABOUT THE AUTHOR
Aya Dufour, reporter
Aya Dufour is a CBC reporter based in northern Ontario. She welcomes comments, ideas, criticism, jokes and compliments: aya.dufour@cbc.ca