Robinson Huron trustees contest legal fees

A handful of Robinson Huron Treaty members are pursuing a judicial review over the half-a-billion dollars in legal fees being claimed by their lawyers, arguing that such an amount is "not fair or reasonable."

While the applicants in this case admit these legal experts "played an important role" in securing a historic $10-billion settlement for 21 Ontario First Nations, they contest this $510 million payment is excessive, especially since it allegedly cuts into the overall settlement money for Robinson Huron communities.

"The net result (will) reduce the settlement funds available for distribution to the beneficiaries by $510 million, leaving some $9.49 billion remaining," reads a notice of application that was submitted to the Ontario Superior Court of Justice on Friday.

"Beneficiary counsel’s fees of $510 million exceed the amount that 15 of the 21 Robinson Huron Treaty First Nations will receive under the settlement."

The applicants in this case are Garden River First Nation Chief Karen Bell, Garden River councillor Chester Langille and Atikameksheng Anishnawbek Chief Craig Nootchtai.

Bell and Nootchtai discussed this legal action publicly during a Monday afternoon news conference in Atikameksheng Anishnawbek, just west of Sudbury, with Bell describing the $510 million in legal fees as "over-the-top" and "unprecedented."

"And if we can whittle it down a little bit, the people who are going to benefit from this are the beneficiaries of the Robinson Huron Treaty territory," Bell said.

"This fee that we are going to ask them to be accountable for will get placed back into the 21 nations and will, at the end of the day, result in more programming, will result in more situations that we can place our members in for a better way of life."

According to the court filing, the "beneficiary counsel" who are receiving this $510 million payment include representatives of Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, a firm based in the community of Rama (located just outside Orillia) that specializes in Aboriginal rights law.

The document also names representatives of Semaganis Worme Legal and Mark L. Stevenson and Associates, Indigenous-focused law firms based out of Saskatoon, Sask. and Saanichton, B.C., respectively.

The Sault Star reached out to these various law firms for comment but did not receive an immediate response.

During Monday's news conference, Nootchtai said Nahwegahbow Corbiere Genoodmagejig did most of the heavy lifting when the Robinson Huron Treaty Litigation Fund (RHTLF) took the provincial and federal governments to court over failing to live up to the conditions of the 1850 treaty.

Under this agreement, the Crown promised to fairly compensate 21 First Nations living on or near the shores of Lake Huron for use of their land, which included the extraction of valuable resources such as nickel, copper, uranium, timber and fish.

However, by the 2010s, these annuity rates had remained the same for around 150 years, prompting the RHTLF to pursue proper compensation throughout the court system.

When the parties finally came to the $10-billion agreement in principle last summer, the applicants allegedly expressed the need to settle the beneficiary counsel's legal fees to ensure they were "fair and reasonable."

During a RHTLF meeting that took place Aug. 31-Sept. 1, Bell and Langille attended with their independent legal counsel.

However, during this meeting, members of beneficiary counsel allegedly told the independent counsel to leave and informed the RHTLF trustees that their invoice would be finalized after the settlement is concluded.

Once the provincial and federal government officially signed off on this $10-billion settlement in January, RHLTF returned to the legal fees issue in mid-April, with chair Mike Restoule reportedly sending trustees a document titled "Fee Opinion from Beneficiary Counsel."

This report allegedly stated that beneficiary counsel was entitled to $510 million for their work in finalizing the settlement, although $255 million of that total would be set aside for "Anishinaabek purposes.”

"In rendering this opinion to the RHTLF on the fairness and reasonableness of their own fees, beneficiary counsel were in a conflict of interest and they should have recommended that the RHTLF obtain independent legal advice," the applicants' statement read. "Beneficiary counsel made no such recommendation."

RHTLF trustees eventually approved the $510 million legal invoice during an April 22 meeting, although several members opposed the motion.

This includes Nootchtai, who introduced a resolution on April 22 to permit the RHTLF to obtain independent legal advice on the "fairness and reasonableness" of the proposed fees.

However, the beneficiary counsel objected, allegedly telling trustees that such a resolution would delay the distribution of settlement funds.

"In the face of beneficiary counsel’s interjections, Gimaa Nootchtai’s April 22, 2024 resolution to obtain independent legal advice on the legal fees failed," the court document read.

Having exhausted their options, Nootchtai and Bell stated on Monday that taking this case before the Ontario Superior Court of Justice is their best option for a resolution.

While no court date has been scheduled as of yet, Nootchtai hopes that this matter can be dealt with swiftly.

"I do want to stress that this action in no way will delay the distribution of funds to our members that is currently scheduled for August 2024," he said. "The legal fees are a separate issue."

In terms of the remaining 19 Robinson Huron communities, Nootchtai said this legal challenge hasn't received their explicit support yet.

However, he hopes this will change now that this court application is being made public.

kdarbyson@postmedia.com

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Kyle Darbyson, Local Journalism Initiative Reporter, Sault Star