TORONTO—A final decision by the Robinson Huron Treaty legal team on whether an appeal will be made on a Superior Court judge decision to slash lawyers’ fees from $510 million by $487 million will come within the next couple of weeks.
In an email to The Expositor on behalf of their clients, Nahwegahbow Corbiere, Brian Gover of Stockwood Barristers said an appeal is being contemplated. “An appeal of Judge Myers decision is being contemplated. It would address his central findings as well as several negative references made about counsel. If an appeal is pursued, it is not the intention of the legal team to seek a stay of Justice Myer’s decision or to otherwise delay actions that the Litigation Fund may take.”
“Last month’s court decision to slash fees for lawyers who represented the Robinson Huron Treaty Litigation Fund (RHTFL) in the historic annuities claim and achieved outstanding and enduring success is a disappointing outcome which echoes centuries of paternalistic attitudes to First Nations,” wrote Mr. Gover. “The legal fee review was initiated by two First Nations, Atikameksheng and Garden River First Nation, who argued that the $510 million contingency fee was unacceptably high. They were opposed by the other 19 First Nations in the Litigation Fund (including all First Nations on Manitoulin Island).
“Despite his decision to drastically cut their fees, Ontario Superior Court Justice Fred Myers praised the legal team for doing an exceptional job; winning an extremely complicated case and achieving a stunning $10-billion settlement from Ontario and the federal government,” said Mr. Gover.
“The $10-billion settlement for past compensation speaks loudly to the tremendous value to the clients that came from the legal team’s efforts on this landmark case. And that does not take into account the value of those efforts to countless generations to come,” continued Mr. Gover. “Counsel for the Litigation Fund and the legal team impressed on Judge Myers during the hearing that, after centuries of intergenerational poverty and abysmal treatment by the Crown, the case lifted 40,000 Anishnaabe people to a bright future and a new level of self-respect.”
Judge Myers concluded that, “notwithstanding this stellar work, the overall fee negotiated by the legal team and its client was simply too high,” continued Mr. Gover. “This led him to conclude, paradoxically, in our view, that the value of what he found to be ‘excellent services rendered’ was 0.4 percent of the value of the overall settlement compensating the First Nations for the Crown’s past breaches of the Robinson Huron Treaty. But this was unlike any of the cases Judge Myers considered in coming to his decision. In setting that amount, Judge Myers did not recognize the perpetual nature of the Robinson Huron Treaty and the fact through implementation of its augmentation clause in the future, the First Nations will benefit from the legal team’s work forever. It is impossible to fully quantify the financial benefits to the First Nations, but they will be enormous.”
Mr. Gover wrote, “We strenuously disagree with Judge Myers’ conclusions about the risk involved. This litigation was enormously complicated and required arduous work by the entire legal team. The massive case required the legal team to invest 17 years and 65,000 hours in a highly uncertain cause. It resulted in a resounding Supreme Court of Canada decision that the Anishnaabe had been systematically cheated for 175 years. The decision ensured payments in perpetuity for the communities and laid the legal groundwork for future Indigenous challenges.”
During the hearing before Judge Myers earlier this fall, lawyers and witnesses for the Litigation Fund and the legal team emphasized that the fee structure was fairly negotiated and sanctified by a sacred pipe ceremony, explained Mr. Gover. “They submitted that the traditional sense of honour and principle embedded in Anishnaabe culture demanded that the agreement be respected.”
But Judge Myers thought otherwise, said Mr. Gover. “In his decision, he said the Litigation Fund ought to have consulted independent counsel about the fee structure in order to fully appreciate all possible outcomes. He waved aside repeated assertions by the RHTLF that retaining independent counsel was considered at the time and was rejected as being unnecessary.
“Judge Myers decision flew in the face of the client (the Litigation Fund’s) firm belief that the legal team should be compensated in keeping with a fee structure that had been carefully negotiated,” said Mr. Gover. “It also failed to recognize the central purpose of fee arrangements of the kind the client sought in this case, and that is to provide access to justice, which is why the first nations retained the legal team.”
Mr. Gover said, “The case provided a classic illustration of how contingency fees permit lawyers to battle for justice on behalf of people with scarce resources. Besides repudiating the right of First Nations to decide key issues without outside influence, the decision failed to appreciate the vital role the legal team played in giving the 21 Lake Huron Anishinaabe communities access to justice. Appropriate legal fees were and are essential to attract lawyers prepared to risk almost 20 years of complex litigation against long odds.”
“After the settlement was reached in 2023 for compensation attributable to the Crown’s past breaches of the Robinson Huron Treaty, the legal team gifted half of the fees that the Litigation Fund agreed to pay, $255 million to their clients’ communities. It was to be used for a variety of programs and services that would enhance their way of life and the retention of the Anishnaabe language and culture. In the wake of Judge Myers’ decision, it is far from clear how those planning commitments will be affected.
Mr. Gover told The Expositor on Thursday of last week, “an appeal can be made 30 days from the October 28 date.”
