Specific Claim Settlements

In most cases the community will need to approve the settlement. This is always needed for claims relating to land and for claims over a certain amount. The settlement agreement can have rules about things like the process for community approval, informing community members and what percentage of the community must agree. 

Money from a specific claim is paid to the First Nation that made the claim. It does not become part of the money the government holds for the First Nation. As part of the settlement of the specific claim the government is released from any further obligations relating to the claim. 

The money can be put in a trust. In this case the trustees named in the agreement hold the money for the benefit of the First Nation. The First Nation Council itself can also hold the money for the benefit of the community. 

The settlement agreement and the trust agreement, if there is one, can have rules about the money. A settlement agreement could say that the First Nation must use the settlement money for the long-term use and benefit of the community. A trust agreement could say how much of the money will be distributed to community members. Trust agreements can require that changes to the agreement can only be made with the consent of community members. 

A First Nation will often hire lawyers to help them with their claim. It is common for lawyers to be hired based on a contingency fee. This means that instead of charging an hourly rate, the lawyer will take a percentage of the amount, if any, their client receives. This allows people who could not afford a lawyer to still pursue a court case.

The Law Society of Saskatchewan has rules about contingency fees that lawyers must follow. There must be written agreement about the contingency fee. The agreement:

• must be fair and reasonable
• must say that the person can ask the court to rule on whether the fee is fair and reasonable
• must not require the lawyer’s agreement if the person wants to drop the case
• must not stop the person from changing lawyers

Lawyers must also follow a code of conduct. The Lawyers’ Code of Conduct outlines what should be considered when deciding what percent is fair and reasonable. These factors include:

• the likelihood of success
• the complexity of the claim
• the expense of taking the case to court
• the amount of money the lawyer expects to be awarded
• who will get any money awarded
• whether the lawyer will be paid fees in addition to the contingency fee

Courts can rule on whether any agreement with a lawyer that is not based on a fee for a service is fair and reasonable. In these cases, the court looks at whether the person who hired the lawyer understood the agreement. They also consider why the agreement was made and what other ways of paying the lawyer’s fees there were. The courts consider many of the same factors lawyers must consider when making the agreement. They also consider:

• how important the case is to the client
• how much time the lawyer spent on the case
• whether the lawyer got a good result
• what the client can afford to pay