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PRIVILEGED AND CONFIDENTIAL

BY EMAIL

September 13, 2023

Chief Andy Rickard & Council
Garden River First Nation
7 Shingwauk Street
Garden River, ON P6A 6Z8

Dear Chief Rickard:

Re: Annuities Package Breach of Settlement Privilege & Confidentiality

We are writing because we have been made aware that on or about Monday, September 11, 2023, Garden River issued a Notice on its website and public social media pages that Robinson Huron Treaty Annuities Information Packages were prepared and being distributed.

We were then notified on Tuesday, September 12, 2023, that the packages were being distributed door-to-door within your community and contained the following materials:

1. the Settlement Privileged Initialed Settlement Agreement;

2. the Solicitor-Client Privileged Retainer Agreement;

3. the Interim Reports from the Honourable Harry LaForme;

4. the Settlement Approval Package prepared by the Legal Team;

5. the Compensation Disbursement Agreement;

6. copies of financial materials of the RHTLF shared in camera during the Sep 1, 2023, Trustees meeting; and

7. the August 25, 2023, letter from our legal counsel, David Nahwegahbow responding to questions posed in a letter from Chief Rickard dated August 14, 2023.

While some of these materials can be shared with the community, certain of the materials need the approval of the Chiefs and Trustees. However, the biggest concern relates to your decision to distribute the initialed Settlement Agreement because it is a breach of settlement privilege and the confidentiality protocol with Ontario and Canada.

That privilege belongs not only to the collective 21 First Nations and the Robinson Huron Treaty Litigation Fund, but also to Canada and Ontario. Breaching confidentiality and settlement privilege potentially jeopardizes the entire settlement for everyone, especially because of the potential for it to become more widely distributed to the public and the media.

We sought and received Canada’s and Ontario’s consent to share the initialed Settlement Agreement with Chiefs, Councillors and Trustees. The email from Mike Restoule, dated August 19, 2023, which transmitted copies of the settlement agreement to the Chiefs made it clear that the document was settlement privileged and that its distribution was strictly limited.

We were able to overcome the confidentiality restrictions in our community sessions by providing a summary of the terms of the settlement agreement. We had Ontario’s and Canada’s consent to do that.

We had to inform Canada’s and Ontario’s negotiators about the breach of confidentiality and settlement privilege, and we did so today. They were concerned about the potential for broader distribution beyond the communities and they made a point of stating that the distribution within Garden River does not constitute a waiver of privilege. They are also going to be undertaking internal consultations within their respective systems and legal counsel.

Please stop distributing the materials, especially the settlement agreement and please take steps to make sure your community members do not distribute the materials outside the community.

We are also asking all Chiefs copied on this email to take steps not to re-share or post any of these materials within their own communities. We also ask that all please post a notice on your citizen protected website portals reminding that all materials that they have or will have regarding settlement are settlement privileged and confidential to the 21 First Nations and their members.

The Legal Team has prepared and will continue to update the documents that can be shared with your community members. Just recently, we convinced Canada and Ontario to allow us to share print versions of a plain language document of the Settlement Agreement and we will be following up with Chiefs and community communications regarding the same.

Finally, the Litigation Management Committee extends an open invitation to Garden River First Nation to meet and discuss any of the above.

Miigwetch,

Mike Restoule
Chair

Cc:
Litigation Management Committee (LMC)
RHTLF Trustees and RHT Chiefs
GRFN Council
Legal Team

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