Counsel representing two Robinson Huron First Nations told a Toronto court July 30 that the legal fees charged by the lawyers who handled the treaty annuities case, for which a $10 billion settlement has now been negotiated, are charging too much for the work they did on the case.
They said it’s $466 million too much, and would like the courts to reassess the amount.
The legal fees are to be paid to Nahwegahbow Corbiere, the team that has provided legal counsel to the Robinson Huron Treaty Litigation Fund (RHTLF) through the annuities court process that began in 2014.
The fees are currently $510 million, though the legal team states they will contribute half, $255 million, back to causes that advance the Anishinaabe nations, including language and land rights.
H. Michael Rosenberg, the lawyer for the two applicant First Nations, Atikameksheng Anishnawbek and Garden River First Nation, argued that not only were the nations deprived of independent legal counsel when deciding if the legal fees were fair, but he said the $10 billion annuities settlement is considered as a “mega fund class action,” which has clear rules under the law.
In his submissions, Rosenberg said that there is a formula for determining a fair and reasonable fee for a settlement “so large that it dwarfs the value of the lawyer's fees on an hourly rate basis,” he said.
Rosenberg told the court that fees on these mega fund settlements should be evaluated by the court according to established law.
“You don’t get more than four times the value of the lawyer’s time at risk,” he said. “it's a body of jurisprudence. It's intended to prevent lawyers from turning lawsuits into lottery tickets.”
Though the listing of the fees charged by Nahwegahbow Corbiere is sealed, by Rosenberg’s calculations, “the most that the court could have approved on an assessment of fees was $44 million.”
He added that counsel for the respondents did not take issue with his calculations.
“Your Honor, it's not as though they take issue with the body of jurisprudence that I've referenced or the calculation that I performed,” he said. “They have technical arguments on standing as to why the court cannot allow the applicants to compel an assessment.”
Those technical arguments were made by respondent counsel for the RHTLF, Peter Wardle and Evan Rankin, as well as counsel for the lawyers of Nahwegahbow Corbiere, Brian Gover and Dan Goudge.
They all say that not only is the price fair, but agreed to freely by the majority of the First Nations under the treaty: 19 of the 21 signatories.
The technical arguments centre on the fact that First Nations are still governed under the Indian Act in some court processes.
Rosenberg explained that individuals have court seals, “or they did back in the days when you carried around your wax in your signature thing,” and common law and corporations have seals because they're given them by statute. “But First Nations, when they bring litigation in their own right, when they form contracts in their own right, they take decisions under section two, subsection three, of the Indian Act,” said Rosenberg. “There's no seal that's authorized by the Indian Act.”
That lack of seal is central to the respondents' arguments.
As respondent lawyer Rankin told Superior Court Justice Jana Steele, “the Supreme Court has said that some indication of a seal is required. There isn't any. That's the end of the story.”
Wardle also submitted that the individual annuitants are not required to pay the legal fees, the RHTLF is, and therefore the individuals have no ability to apply for the assessment of the legal fees. He said it was the RHTLF that retained Nahwegahbow Corbiere and the lawyers acted for the trust, not individual First Nations.
As to Rosenberg and the applicants claim that the RHTLF, specifically the Litigation Management Committee (LMC) “breached their fiduciary duty to Robinson Huron treaty First Nations by failing to provide independent legal advice,” the respondents quote RHTLF trustee, former Wiikwemkoong Unceded Territory Gimaa Duke Peltier, during his pre-trial deposition.
“The trustees decision to approve the lawyer's fee proposal was a reasonable and appropriate exercise of their collective discretion,” he said. “Particularly given the extraordinary results achieved by the lawyers.”
Peltier said in his deposition there was an “extensive discussion at the meeting” about whether the trustees, the signatory nations, should obtain independent legal advice before determining whether to accept the lawyer's proposal. He said the trustees were repeatedly advised that any trustee who required independent legal advice could abstain from voting and provide their vote following the meeting, “as has been the trust's practice since its inception.”
Essentially, the respondents argument on this front was that it was offensive to assume that the other trustees were not fully aware of the costs to which they were agreeing.
He referred to the sealed contingency fees, and two reports, which he said totalled more than 100 pages, that were given to the trustees when they made their decision.
“What you have in front of you is you have the lawyers' two reports, totaling over 100 pages. And that material was in front of the trustees when they made their decision,” said Wardle. “They exercised their discretion, that they were satisfied with it (the reports) and they exercised their discretion and they approved it.”
Steele told the court that she needed time to deliberate before she could issue a decision, but while she did not give a timeline, she said she hoped reserving her decision would not hold up the distribution of the settlement outside of the $510 million.
Jenny Lamothe is a reporter for Sudbury.com
