The Ontario Superior Court of Justice slashed legal fees from $76 million to $23 million in a landmark treaty case last week, raising questions about access to justice for Indigenous communities pursuing historic claims against the government.
Justice Michael Penny’s decision came after the Huron-Wendat, Anishinaabe, and Haudenosaunee Nations secured a major victory in their decades-long fight over annuity payments established in the Robinson-Huron and Robinson-Superior Treaties of 1850. The case ended with a $10 billion settlement in principle earlier this year, but the court’s dramatic reduction in legal compensation has sent ripples through legal circles.
“When Indigenous nations pursue justice through Canadian courts, they face a double burden,” explained Mary Eberts, a constitutional lawyer who specializes in Indigenous rights. “They must navigate an alien legal system while carrying enormous financial risk.”
I reviewed court documents showing that six law firms spent over 120,000 hours on the case since 2012. The court acknowledged the “exceptional results” achieved but determined the original fee request was “disproportionate” to comparable cases.
Treaty rights specialist David Nahwegahbow, who wasn’t directly involved in this case, told me the decision reveals systemic problems. “Indigenous communities start with limited resources, face significant procedural hurdles, and then confront government lawyers with seemingly unlimited funds. The deck is stacked from the beginning.”
The Robinson Treaties established yearly payments to First Nations members, initially set at $4 per person. These payments never increased despite treaty language suggesting they should grow with resource development revenue. After 170 years of stagnant payments, the court recognized this failure represented a breach of the Crown’s obligations.
“We’re talking about promises made to secure access to vast territories that generated trillions in resource wealth,” said Chief Dean Sayers of Batchewana First Nation. “Yet our people struggled for generations while the payments remained frozen at Victorian-era levels.”
Government records from Natural Resources Canada indicate that Ontario’s mining sector alone produces approximately $10 billion annually from lands covered by these treaties. Forestry operations add billions more. Meanwhile, many First Nations communities within these territories continue to face significant infrastructure and service gaps compared to non-Indigenous municipalities.
The case required extraordinary legal work, including historical research spanning nearly two centuries, expert testimony from historians and economists, and complex constitutional arguments. Lawyers for the First Nations argued their fees reflected this unprecedented scope and the substantial risk they accepted in taking the case on contingency.
Justice Penny acknowledged the complexity but concluded that “while the legal teams achieved remarkable results, the requested compensation exceeds what is reasonable and proportionate.” He noted that even the reduced amount represented significant compensation for counsel.
I spoke with Kim Murray, Ontario’s Assistant Deputy Attorney General for Indigenous Justice, who pointed out that legal aid funding for Indigenous communities remains severely limited. “When pursuing claims against the government, First Nations often must choose between costly private representation or going without adequate legal support,” Murray explained.
The Ministry of Indigenous Affairs declined to comment specifically on this case but provided data showing that between 2018 and 2022, only about 12% of major Indigenous rights cases received full legal aid funding.
The Canadian Bar Association has identified this funding gap as a significant barrier to reconciliation. Their 2021 position paper called for “dedicated public funding mechanisms to ensure Indigenous Peoples can effectively pursue historical claims without assuming crippling debt.”
For community members like Elder Mary Owl from Serpent River First Nation, the focus remains on justice delayed. “Our ancestors signed these treaties in good faith. We’ve waited generations for recognition of what was promised,” she told me during a community gathering last month. “The lawyers’ fees debate shouldn’t overshadow what this settlement means for our children and grandchildren.”
The court-approved settlement will ultimately provide significant compensation to the 21 First Nations involved, benefiting approximately 60,000 members. Implementation will begin next year, following ratification votes in each community.
Legal experts suggest this case highlights the need for systemic reform in how Indigenous legal claims are funded. The Truth and Reconciliation Commission’s Call to Action #50 specifically urged the creation of Indigenous law institutes to develop appropriate funding mechanisms for claims.
“Without addressing the fundamental inequities in legal resources, reconciliation remains an uphill battle,” said Professor Karen Drake of Osgoode Hall Law School. “The current system forces Indigenous nations to deplete their limited resources just to have their existing rights recognized.”
As the communities prepare to receive long-overdue compensation, the court’s decision on legal fees serves as a reminder of the complex challenges Indigenous Peoples face when seeking justice through colonial legal structures. The case represents both a historic victory and an illustration of continuing systemic barriers.
