Danegeld – literally “Dane yield” – an Anglo-Saxon tax raised to pay tribute or protection money to buy off Viking raiders.
———————
“It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: —
“We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that plays it is lost!” – From his poem “Dane-Geld” by Rudyard Kipling
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“A deal’s a deal.”
Introduction
A recent legal decision from the British Columbia Supreme Court, Metlakatla First Nation v. Prince Rupert Port Authority, (“Metlatakla”), once again highlights the fact that British Columbia leads the nation in government policies and court decisions in favour of Aboriginal groups that erode trust in the marketplace and that in operation and effect are economically and socially destructive, and which, being extended nationally, will destroy Canada’s economic and social wellbeing.
In its’ all-embrace of the letter and spirit of Supreme Court of Canada decisions under section 35 of the Constitution, section 35 itself, the nation-destructive, federal UNDRIP, and its own similarly state-suicidal DRIPA, (collectively referred to as “B.C.’s and Canada’s pro-Aboriginal laws”), the Panglossian Eby government has relentlessly engaged in a program of destabilizing and weakening British Columbia.
On the B.C. judicial side the Province’s pro-Aboriginal judicial bias, (a Canada-wide phenomenon), was emphasized by former Chief Justice Robert Bauman who told a legal conference in Vancouver in 2021 that “the Canadian justice system must recognize the existence of the many Indigenous legal orders in Canada, reconciling them with the common law and current legal protocols.” He said: “the process of reconciliation, including legal reconciliation, must be prioritized.”
He talked about non-Aboriginal Canadians and their governments purported “jealous need for control” being “destructive.” He referred to the ancestors of non-Aboriginal Canadians as “uninvited guests” in Canada. He said that the courts “must act responsibly within the matrix of Indigenous customs, traditions and protocols”.
He described the court system, for which he was partly responsible, as “a barrier to justice” for Aboriginals.
The problem is not that what Chief Justice Bauman said was blatantly false.
The problem is that he said these things at all. It’s neither his business nor that of his Court to opine, especially in public speeches, on such non-legal, contentious, social, popular/political matters.
The judicial bias shown by Chief Justice Bauman has been amply reflected in court decisions.
B.C. courts have ruled that mandatory smudging ceremonies in public schools do not violate the State religious neutrality principle, that normal civilizational progress acquiesced in by all can be a treaty violation, that the Charter of Rights can be overridden on reserves, that an Aboriginal “supernatural den” is an objective reality that is a valid reason to override government sovereignty and laws, and, most notoriously, that an Indian band can be declared the Aboriginal title owner of a patch of urban, intensely-developed land 80 kilometres away from its home, which land it hadn’t set foot on for the past 150 years.
Now along comes Metlakatla, which purports to challenge the existence of one of the most basic and fruitful elements of capitalism – freedom of contract – by threatening to turn the fiduciary obligation that the Supreme Court of Canada has said is owed by the Crown to a First Nation in most dealings with it into an obligation on the Crown or any private actor negotiating an agreement with the First Nation to put the best interests of the First Nation ahead of its own – to negotiate against itself and against its own reasonably considered best interests, even to the point of violating a contract it has with another.
If Metlatakla is successful in its lawsuit then such an irrational and destructive race-based restriction on freedom of contract – a restriction amounting to in effect abolishing it in Aboriginal consultation situations (for where is the freedom in not being able to reasonably pursue one’s own best interests?) – will further cement B.C.’s status as a leaderless, anti-capitalist, irrational, Aboriginal rights-obsessed and dominated Province, which new investment dollars will be compelled to shun.
Background
Metlatakla First Nation, (“MFN”), is one of over 200 First Nations in B.C. In 2021 it had a population of only 1102 persons. Notwithstanding this, like most of these similarly tiny B.C. First Nations, because of B.C.’s and Canada’s pro-Aboriginal laws enshrining “consult and accommodate” and Aboriginal title, MFN has a practical veto – a hammerlock- over all resource development in its (always vague and undefined) “traditional territory”. It exploits this veto power by demanding from resource project proponents danegeld – a combination of compelled cash payments, jobs, contracts, free equity interests and numerous other financial payments and benefits – as its price for not exercising its veto by tying up the proposed resource project in the courts for years.
As a result of all this MFN, with its expensive Vancouver lawyers on speed dial, has accumulated a great deal of power, money and influence.
As disclosed by a B.C. government website, MFN, by way of forestry, liquid natural gas, “Reconciliation” and other such danegeld agreements, receives hundreds of thousands of tax-free dollars year, perhaps more, (it’s kept confidential), from governments (being Canadian taxpayers) and industry, as do all other non-treaty B.C. First Nations.
A necessary requirement for the fiduciary principle to be engaged in a Crown-Aboriginal dealing is, in the context of that dealing, the Crown having discretionary control over an Aboriginal interest. Given B.C.’s and Canada’s pro-Aboriginal laws, some of which are constitutional nature, it is B.C.’s First Nations who now have and exercise discretionary control over the B.C. Crown interests, and, by extension, the interests of the B.C. public.
The duly elected B.C. government is not the sovereign master in its own house, (nor for the fact of the matter is Canada).
Prince Rupert Port Authority (PRPA) was incorporated by the federal government in 1997 pursuant to the Canada Marine Act to own, manage and operate the port of Prince Rupert.
It is only an agent of the Crown for the purposes of port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods.
It is not an agent or arm of the federal government for any other purposes, such as entering into commercial agreements with its tenants that provide consent for specific cargoes being moved through or stored on any part of its property, which is the core subject matter of the Metlatakla court action.
In this regard, despite it being in essence a Crown corporation, it is more in the nature of a private commercial actor.
In 2015 PRPA entered into a commercial development agreement (the agreement”) with Vopak Development Canada Inc. (“Vopak”), a subsidiary of a multi-national Dutch company.
By the terms of the agreement Vopak agreed to be a tenant of PRPA and build and operate a liquified petroleum gas (LPG) facility for the receiving, storing and loading of LPG and other specified products for export. (“the Vopak project”).
Vopak’s budgeted setup cost of the project is $1.3 billion. The project is planned to become operational in 2027.
It is an important term of the agreement that Vopak, inorder to protect its huge investment, have exclusive rights to handle LPG within the PRPA property, (called the “export monopoly” in the Metakatla decision.)
It was also a material term of the agreement that the details of it would be confidential between the parties: (the “confidentiality term”).
Beginning in 2018 PRPA and Vopak began section 35 consultations with MFN, which consultations lasted for a 5-year period, ending in 2023. As the result of the consultations MFN secured danegeld accommodations in the form of, amongst other benefits, an impact benefit agreement with Vopak.
During the 5-year consultations, in compliance with the confidentiality term, neither PRPA nor Vopak disclosed to MFN the existence of the export monopoly.
On December 20th, 2019, the federal government sold Ridley Terminals, another longstanding tenant of PRPA, to an Australian-owned multinational company, AMCI, and a New York-based private equity firm named Riverstone Holdings, (jointly, “AMCI”), for a price of $350 million.
It is a term of the Ridley Terminals lease, which AMCI inherited and assumed, of which term they had to have been aware before they completed the purchase, that without the express permission of PRPA, the uses of the Ridley Terminals leased property are limited to coal, coke and propane gas-handling uses. To engage in any other use not permitted by the lease, such as handling LPG, AMCI needs the express, written permission of PRPA.
For “consult and accommodate” and danegeld purposes MFN and another nearby Aboriginal band, the Lax Kw’alaams Band, were each given, in addition to other danegeld benefits, a free 5% equity interest in AMCI’s Ridley Terminals project, making the capital value of MFN’s interest in it worth approximately $1.75 million.
In May of 2022 AMCI, the new owners of Ridley Terminals, re-named it Trigon Pacific Partnerships Limited (“Trigon”).
In November of 2022, with Aboriginal accommodation demands apparently satisfied at the time, the federal government formally approved the Vopak project.
In December of 2022 PRPA granted to Vopak a ground and water lease for the Vopak project.
In September of 2023, due to pending federal government environmental restrictions on the export of coal, Trigon sought permission from PRPA to amend and expand its permitted uses on its Ridley Terminals property to include handling LPG.
Due to its export monopoly agreement with Vopak, PRPA was and is unable and unwilling to consent to this.
In response, as part of a two-pronged MFN/Trigon legal strategy, Trigon sued PRPA in late 2023 for a court declaration that the LPG export monopoly it had given Vopak was “wrongful”, and in 2024 MFN sued PRPA claiming damages for “failing to adequately consult” with it with respect to the project, in particular by allegedly breaching its alleged fiduciary and mandatory duty to MFN to disclose during the 2018-2023 consultation period the “material fact” of the existence of the export monopoly it had contractually granted to Vopak. MFN also claimed “negligent misrepresentation” against PRPA based on its alleged wrongful failure to disclose to MFN the existence of the Vopak export monopoly. MFN also claimed the equitable relief of “unjust enrichment.”
MFN claims that but for this failure to disclose the existence of the Vopak export monopoly it would never have consented to the project going ahead and would not have entered into the impact benefit agreement with Vopak.
With respect to the Aboriginal law applicable to these facts, MFN claims in essence that the fiduciary component of PRPA’s duty to properly consult and accommodate MFN mandated the disclosure by it to MFN of Vopak’s export monopoly, despite the fact that doing so would have caused PRPA to materially breach its agreement with Vopak. MFN further claims, as stated, that PPRA made a negligent misrepresentation in this regard, entitling it to compensatory damages.
MFN is basically saying in its lawsuit: “To have properly consulted with us you had to breach your confidentiality agreement with Vopak by disclosing the existence of the export monopoly, and any adverse legal or business consequences you might have suffered for that are not our problem.”
Notwithstanding these lawsuits, and, in reliance on its commercial agreements, including its impact benefits agreement with MFN, on May 30th, 2024 Vopak announced that it was proceeding with the completion of the project.
In 2025, despite having no permission from PRPA to handle LPG, Trigon barged ahead with the construction of a $750 million LPG facility.
It also engaged in an unsuccessful public relations strategy to have the federal government force PRPA to reverse its decision to refuse Trigon’s request for permission to handle LPG, and this in the face of PRPA’s now 10-year old contractual Vopak export monopoly obligation and Vopak’s 10-year reasonable reliance on same.
PRPA, determined to defend its commercial rights and agreements, brought a motion to strike the lawsuit.
By its January 2026 ruling, the B.C. Supreme Court ruled that it was not plain and obvious that MFN’s claims would fail, and the action was permitted to proceed.
The importance of the contractual export monopoly and confidentiality terms to PRPA and Vopak (aka” REEF”) is evidenced by the fact that, as part of Trigon’s legal action against PRPA, it sought production of a non-redacted copy of the PRPA/Vopak agreement, which was refused. Only a redacted copy was provided.
Trigon brought a motion to compel production of it, which motion was denied. Trigon appealed that ruling to the B.C. Court of Appeal, which upheld the motion court’s ruling. In its reasons the Court of Appeal stated that it was:
…more than satisfied that there is a good reason for the redactions in that disclosure would expose REEF’s confidential information and harm its commercial interests and its dealings with third parties…(and) would provide REEF’s competitors a “window” into its project management system and highly confidential information; and that disclosure of the non-LPG products over which REEF holds exclusivity rights would harm it in its negotiations with export partners… All of this was… particularly significant since Trigon is currently a competitor [of] REEF…”
Evidencing at the very least the extreme wealth of the parties and the high financial stakes each party believes to be at issue, Trigon has sought leave from the Supreme Court of Canada to appeal this interlocutory decision.
On February 4th, 2026, shortly after winning PRPA’s motion against it to strike their legal action, MFN announced that it was withdrawing its consent to and support for the project, refusing in future to consent to the issuance of any further permits for the project required by either PRPA or Vopak, (and presumably resiling from its danegeld agreement(s) with Vopak.) This after Vopak has already spent a substantial portion of its $1.3 billion development budget.
Argument
Freedom of contract central to capitalism and a matter of core public interest
The writer’s 1970 Law School textbook, Anson on Contracts, opens with the statement:
“Contract law is the child of commerce, and has grown with the growth of the country from a mainly agricultural into a mainly commercial and industrial nation…contact law does not lay down a number of rights and duties which the law will enforce; it consists rather of a number of limiting principles, subject to which the parties may create rights and duties for themselves which the law will uphold. The parties to a contract, in a sense, make the law for themselves. So long as they do not infringe some legal prohibition, they can make what rules they like in respect of the subject matter of their agreement, and the law will give effect to their decisions.” (italics added)
Examples of “limiting principles” and “prohibitions” are contracts and contract terms made illegal by statute – minimum wage laws, landlord and tenant laws and competition laws are examples of these – and contracts and contract terms made unenforceable by common law principles such as fraud, mutual mistake, incapacity of a contracting party, unconscionability and promoting an immoral activity or aim contrary to public policy.
As to the last, a contract or contract term enabling or promoting racial discrimination might be ruled void and unenforceable as being in violation of basic human morality and of the letter and the spirit of Canada’s human rights laws, all of which promote the laudable public policy goal of Canada being a racial discrimination-free civic and legal polity.
The existence of freedom of contract, within the bounds of these limiting principles and prohibitions, is fundamental to the healthy workings of capitalism and as such is very much a matter of core public policy and of public interest.
Aboriginal law creates a race-based danegeld limitation on freedom of contract
The Crown duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title, including a merely asserted right or title, such as asserted Aboriginal title, and contemplates conduct that might adversely affect it. In this situation the Crown, based on the Honour of the Crown doctrine, has a duty to accommodate that particular Aboriginal right or title.
Aboriginal rights proponents argue that once Aboriginal title is recognized or ceded in relation to a particular area, “the Crown will vacate jurisdictional space, and Aboriginal law will govern there”. The new Aboriginal title holder would then have the exclusive right to use and control the land and enjoy its benefits. It would not be bound by agreements made by the previous occupiers relating to the use of the land, such as the PRPA/Vopak agreement and the export monopoly term contained in it. It could ignore the 150 years of investments and interests in the land built up by the previous occupiers (who mistakenly thought they were owners) and tenants, and, as in the Cowichan case, leave it up to the Crown and Canadian taxpayers to compensate them and/or otherwise clean up the mess.
This is the nub of MFN’s argument in its case against PPRA – that the export monopoly – a perfectly legitimate exercise of freedom of contract- limits their prospective, remotely possible, Aboriginal title -based right to maximize the economic value of their (speculative) Aboriginal-title based rights by ignoring the Vopak export monopoly and entering into agreements with anyone they want, such as Trigon, for port handling of any products they want, such as, of course, LPG.
In this typical consultation situation, the Crown invariably downloads its duty to consult and accommodate onto the shoulders of the corporations which wish to be involved in the resource project in question. In the present situation, which is common, “accommodation” was made by PRPA and Vopak in the form of impact benefit agreements awarded to MFN and Lax Kw’alaams, and by Trigon in the form of the granting such agreements as well as giving an effectively free 5% equity interest in Trigon to each of those two First Nations bands.
This is modern danegeld – situationally coerced, shakedown benefits being extracted by First Nations, who, as between the Crown and resource project proponents, are initially legal strangers to the proposed project and contracts relating thereto, as the price of their consent – as stated, as the price for them not tying up the proposed project in court for years.
This is toll gating- a medieval form of unjust economic coercion characteristic of pre-states and failed states. It is not characteristic of a sovereign, modern, liberal, rule of law-based nation-state.
Inexplicably, this shakedown/toll gating reality is blessed by the Supreme Court of Canada and legislatively endorsed by the federal UNDRIP and B.C.’s DRIPA.
Only Aboriginals, because of B.C.’s and Canada’s pro-Aboriginal laws -all based on race – have this right to demand danegeld agreements from resource project proponents.
It can now reasonably be said that in all resource project situations involving Aboriginals, there is now a legal, race-based, danegeld limitation on freedom of contract.
There is now a de facto, imposed, implied term in every major resource project contract that the contract is conditional on the Aboriginal danegeld obligations being satisfied by one or both sides of the contract, failing which the contract is frustrated. (“The Aboriginal danegeld implied term”.)
In any other Canadian business context this imposed and implied limitation on freedom of contract would be regarded as unenforceable on account of it being unconscionable, based on duress, racially discriminatory, and otherwise immoral, being in violation of Canada’s overall public policy against racial discrimination in any form.
It is the height of inexplicable irony that the Aboriginal danegeld implied term, accepted unquestionably by Canada’s elite classes, would be denounced as an illegal, immoral and racist affront to Canadian values if the legally favoured race in the resource project situation was Asian, Black or God forbid, “White”, rather than Aboriginal.
MFN seeks to broaden the scope of the Crown’s Aboriginal consultation obligations to the extent of destroying freedom of contract
In her ruling in Metakatla the motions court judge, in light of Metlakatla’s assertion of Aboriginal title over the lands and waters of the Port of Prince Rupert, ruled as a matter of law that “Metakatla was entitled to the deepest possible level of consultation”.
In a typical fiduciary relationship, the dominant party, in all its dealings with the deemed vulnerable and dependent “inferior” party, often referred to as “the beneficiary”, must always prefer the best interests of the beneficiary over its own. It cannot have a conflict of interest.
In this supposed “deep consultation” PRPA/Vopak situation MFN claims that this fiduciary element of Crown-Aboriginal dealings obligated PRPA and its consultation delegate, Vopak, in their consultation dealings with MFN, to sacrifice and forego their own substantial ($1.3 billion) commercial best interests in favour of the best interests, real and imagined, known and unknown, of MFN.
MFN is claiming in its lawsuit, in relation to the consultation period 2018 and 2019, when Trigon was not even in the picture, that this duty includes imagining that Trigon or someone like it might enter the picture, might want to handle LPG, and suggesting a means of dealing with it advantageous to MFN.
MFN is claiming that for the consultation period 2020-2023, when Trigon – partially owned by MFN – was in the picture, this duty included speculating that Trigon might want to handle LPG and suggesting a means of dealing with it advantageous to MFN. (There’s no indication that either Trigon or MFN suggested this as a possibility until Trigon announced its wishes in this regard in late 2023, well after MFN had indicated that it was satisfied with the consultation process and the danegeld benefits it was receiving from Vopak).
To merely state the essence of MFN’s claims in this regard is to demonstrate their patent unreasonableness.
The Aboriginal rights “recognized and affirmed” by section 35 of the Constitution are generally understood to be rights in existence at the time of the first assertion of Crown sovereignty, which in B.C. is 1846. Obviously, nobody then engaged in the handling of LPG, so no Aboriginal rights have ever arisen in relation to it.
MFN merely asserts in passing fashion a claim for Aboriginal title in its action against PRPA. It has not actually sued for such a declaration in this or any other action. Talk is cheap. An actual lawsuit claiming Aboriginal title takes at least fifteen years and costs millions of dollars. Given the huge public reaction against the Cowichan decision, First Nations who advance such claims can now expect much fiercer legal resistance from Crowns and their lawyers.
The absence of an actual legal MFN claim for Aboriginal title during the 2018-2023 consultation period naturally informed PRPA’s consciousness of what matters were reasonable to consider. Clearly, MFN never said anything concrete about such a possible happening during the consultation period. And the general understanding of Aboriginal rights being those in existence in 1846, it is ridiculous to suggest that PRPA should have had in mind during the consultation dealings, and dealt advantageously in MFN’s favour in relation to it, the remote, unforeseeable, highly speculative and imaginative possibility of MFN, years after the fact, starting and winning an Aboriginal rights action, and then, with all 1102 of their members in agreement, deciding to engage on its own account in the billion dollar business of handling LPG.
The Crown fiduciary obligation was developed by the courts to address the historic imbalance in bargaining power in Crown-Aboriginal dealings relating to treaties and land claims – core Aboriginals matters.
The PRPA-Vopak project is a distinctly modern, non-Aboriginal -in-nature, capitalistic, sophisticated, commercial bargaining situation. This is reflected in the MFN legal claim, which alleges that PRPA wrongfully disregarded MFN’s “derivative economic rights.”
As disclosed by the B.C. website devoted to MFN (above) this band is an experienced player in the danegeld business. It had access to top lawyers, accountants and other advisors throughout the consultation period. Because of this, and the existence of B.C.’s and Canada’s pro-Aboriginal laws, there’s no factual basis for the fiduciary principle to apply at all in dealings like the PRPA-Vopak/MFN dealings.
When an Aboriginal band, seeking extra lucre, relying solely on its racial status and the de facto veto power that comes with it, wanders out of its core-Aboriginal lane into the adjacent fast lane of modern, sophisticated big business, where it has little to offer except not exercising its veto, it must be bound by the same principles of contract law and business morality as everyone else.
This is not a situation where the fiduciary principle should apply at all.
MFN signed business agreements with their eyes open and with the benefit of sophisticated, independent legal advice.
Basic business morality demands that they stick to their bargains.
MFN’s double-crossing legal action is purely strategic and in bad faith
The likelihood is that MFN was put up to this frivolous, bad faith lawsuit by Trigon, as part of its overall campaign to cause governments to loosen Vopak’s monopoly on handling LPG. It’s likely that, one way or another, Trigon is paying for MFN’s lawsuit.
As contracts are the child of commerce, so trust is the parent of contracts.
Parties to contracts have a duty to perform their side of the contract in good faith having regard to the reasonable expectations of the other party.
By withdrawing from the Vopak project in these circumstances MFN is double-crossing PRPA and Vopak in favour of Trigon and its better offer. Having put itself in an impossible and unethical conflict of interest situation, MFN has fundamentally breached its danegeld agreement(s) with Vopak.
By withdrawing its support for the Vopak project, after Vopak has spent millions of dollars over many years in partial reliance on that support, MFN has acted in a morally repugnant, untrustworthy commercial manner, opening itself up to being justifiably sued by either PRPA or Vopak
But as usual, MFN will likely suffer no accountability. There is such an irrational fear of Aboriginal power in these circumstances – fear of standing up to them – that MFN will not even suffer public criticism.
But trust in First Nations, and respect for them, and trust in and respect for Canada’s business ethos and environment, will silently slip further away in favour of more rational, fair places and trustworthy places in which to invest.
The civically immoral, race-based constitutional laws -”consult and accommodate” and Aboriginal title – with their lack of definitions, boundaries, binding protocols and accepted moral and business practices and standards; with the license for unrestrained selfishness and vast consequence-free carelessness that they and Canada’s and B.C.’s pro-Aboriginal laws give to Aboriginal bands; and with Aboriginal bands having so much power and so little corresponding responsibility (always a cause of deep social resentment in any society); have turned Canada’s resource economy into a chaotic, unpredictable, unstable and untrustworthy place to invest.
Investments require certainty and a trustworthy marketplace. The cynical MFN lawsuit typifies the fact that neither is to be had in Canada’s resource sector.
As much as present-day Canada must react to external threats to its sovereignty, it needs to react against this internal threat to its sovereignty, economy and social well-being.
Peter Best
Sudbury
March 1, 2026,
