"B.C. leads the country in court decisions and government policies that seek to achieve “reconciliation” by acceding to whatever radical demands are made by Indigenous groups. The key feature of this process – unending acquiescence via court rulings, legislation, policy and “nation-to-nation” agreements, many of them hashed out in secret and later sprung on a citizenry that had no say in the matter – has become like a modern form of Dane-geld. And with the same unfortunate result.
As King Ethelred discovered, whatever you pay is never enough. Rather, each “payment” of legal and/or public-policy tribute provokes still greater demands in the future while eroding Canada’s negotiating position the next time around. All of which is causing the slow-motion destruction of our economic and social wellbeing and the diminution of Canada’s national sovereignty.
The most damaging legislative example of this process has been the enshrining of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into B.C. and federal law. But B.C. courts have wrought their own havoc with bizarre decisions that weaken key economic and legal precepts. They have tossed aside the key modern-day principle of state neutrality in religion by approving mandatory native spirituality ceremonies in public schools. Provincial judges have also ruled that the normal progress of civilization can be considered a treaty violation and that imaginary “supernatural dens” can be considered an objective reality sufficient to upend provincial laws. Even more significantly, the now-notorious 2025 Cowichan ruling revealed that fee-simple land ownership, the bedrock of Canadians’ property rights, can be pushed aside by aboriginal title on the strength of mere historical hearsay and second-hand notes.
As if all of this weren’t enough, now comes another cataclysmic threat to the coherence of Canada’s legal system: the case known as Metlakatla First Nation v. Prince Rupert Port Authority. Here the courts appear ready to erase another fundamental aspect of economic life in Canada – the sanctity of contract law. Though it concerned only a jurisdictional matter rather than settling the overall dispute, the January 2026 decision could prove to be Canada’s most dangerous Dane-geld yet.
The Metlakatla First Nation (MFN) is one of over 200 Indigenous communities in B.C. In 2021, it had a population of just 1,102 people living near the port city of Prince Rupert. Despite its tiny size, provincial and federal laws requiring a duty to “consult and accommodate” plus the ever-evolving concept of aboriginal title have given the Metlakatla a functional veto over resource development throughout their “traditional territory” that covers a vast swath – as much as 200,000 square km – of northern B.C.
The MFN exploits its hammerlock by demanding what amounts to Dane-geld from local resource projects. The tribute can take many forms: outright cash payments, job or contract guarantees, equity interests and other financial payments and/or benefits. For those who choose not to pay, the MFN makes frequent use of the courts and a cadre of expensive Vancouver lawyers who can delay or stymie any developer foolish enough to deny their clients their geld...
The record demonstrates that no resource project in the area can proceed without some form of payment to the MFN being made by taxpayers and/or industry. While some acknowledge or even celebrate this as supporting Indigenous reconciliation, what it really means is that the tribe – and effectively all of B.C.’s First Nations – exercise discretionary control over the Crown’s interests in the province. If a government needs to ask permission from another group to do anything on its lands, then it is not the sovereign master of its own house. It might not even own that house. The implications could hardly be more profound...
Bringing aboriginal law into the case, the MFN asserted that the PRPA’s duty, as an agent of the federal Crown, to consult and accommodate the MFN required it to reveal the terms of the REEF deal – even though this would have caused the PRPA to breach its contract with REEF. The MFN is basically saying that a duty to consult overrides any contractual obligations a Crown corporation may have with any other non-native organization or business...
The broad liberties that freedom of contract allows two or more parties to enter into mutually beneficial agreements have made it fundamental to the healthy functioning of our entire economic system – and, thus, a matter of paramount public interest.
The Crown’s duty to consult is a much more recent innovation, established via Supreme Court precedents that greatly expanded the meaning of the simple and clear wording of Section 35(1) of the Constitution. The duty to consult arises when a government has knowledge of the potential existence of an aboriginal right or title and is contemplating an action that might adversely affect it. This triggers a related doctrine, the “Honour of the Crown”, also manufactured by Canada’s courts, that requires accommodating a particular aboriginal right or title.
Indigenous rights proponents will argue that once aboriginal title is recognized or ceded, the Crown must vacate the jurisdictional space and allow native law to govern, giving the title-holder exclusive right to use and control the land. This has been argued in relation to the recent “Rising Tide” Haida Title Lands Agreement concerning B.C.’s former Queen Charlotte Islands. From this perspective, the new titleholder need not be bound by any agreements made by the previous occupiers – which quite likely could include legal contracts...
The MFN is essentially saying it intends to hold the entire port facility hostage until it gets what it wants. Contract law be damned...
In effect, the MFN is arguing, absurdly, it would seem, that any negotiation involving a Crown-owned entity and a potential native interest must always be resolved to the complete satisfaction of the native party, regardless of the legal consequences or temporal impossibilities...
Aboriginal rights “recognized and affirmed” by Section 35 of the Constitution are generally understood to be rights existing at the time of the first assertion of Crown sovereignty, which in B.C. is 1846. Obviously, nobody was then engaged in the handling of LPG, so no aboriginal rights have ever arisen in relation to it...
The MFN has essentially double-crossed both parties in favour of Trigon and its presumably better offer. And having put itself in such a conflict of interest, the MFN has also breached its Dane-geld agreements and should be required to give back all that lucre.
Despite such solid legal logic, however, it seems unlikely the Metlakatla will ever face any negative consequences for their actions. Given other recent B.C. court decisions that defy precedent and common sense, there’s a reasonable chance they’ll actually succeed in rewriting contract law. That is certainly implied by the recent court decision allowing the case to proceed to trial. And the “nuclear” threat to block all subsequent consultations with REEF for possible expansions and other changes could even have a good chance of paying off in terms of additional Dane-geld down the road.
But even if all this is successful in the short-term, what are the long-term consequences of this behaviour? By acting in such a discreditable manner, the MFN – and by extension all First Nations – are undermining their own claims to legitimacy. If one of the main goals of Indigenous reconciliation is to integrate and embed native interests into Canadian economic development, then native partners have a responsibility to act in a reliable and trustworthy manner. To this end, they should regard business contracts to be as sacred and inviolable as the treaties they once signed with the federal government...
The invention of new forms of aboriginal title meant to deliver a temporary business advantage to a particular First Nation raises even more uncertainty throughout the resource industry – and puts future projects in peril.
Keep in mind that the players in this dispute include large multi-national corporations with global perspectives. Undermining contract law for domestic resource projects will send another signal to the rest of the world that Canada is not a reliable place to do business. If Indigenous Canadians wish to participate in the broader Canadian economy, they need to accept the rules that have been in place for centuries and which all other participants have already agreed upon. They can’t simply make up their own game.
Correcting this situation – which has implications for all of Canada – will require the efforts of all Canadians. In my many years as a lawyer, I came to realize that my most successful business clients were those whose word was as good as a signed contract. Again, trust is fundamental to prosperity and progress. If native businessmen and businesswomen cannot be taken at their word then it falls to the business community-at-large to push back against this behaviour. The most immediate corrective is to sue over breach of contract, as mentioned earlier. This should be encouraged.
But the rest of society has a role to play as well. All citizens must be able to exercise their freedom to publicly and explicitly criticize discreditable activity, regardless of the race of those engaged in it. Unfortunately, the societal norms of present-day Canada make it nearly impossible to call out this sort of conduct in the native community, particularly by the mainstream media. The Globe and Mail’s coverage of the REEF dispute is illustrative of this reluctance.
In an article on the MFN’s February 4 declaration of its “nuclear” intent, Canada’s self-declared “national newspaper” studiously avoids any mention of the disastrous implications of the band’s actions, framing them instead as yet another example of an intransigent federal government doing harm to native interests. “Metlakatla,” the Globe blandly claims, “is upset that the port authority has frozen out the First Nation and other Trigon partners in their bid to diversify into different commodities, notably propane and butane.” Promoting such an upside-down narrative in order to avoid calling out the discreditable and self-interested behaviour of Indigenous interests – behaviour that, in this instance, threatens to wipe out a whole category of Canadian law – infantilizes the entire native business community.
Finally, it is also time for the Canadian court system to contemplate the effects of its own campaign of continued indulgence towards the escalating demands of Indigenous organizations. Allowing the MFN lawsuit to proceed despite another, superior arm of the same court system already implicitly upholding the legality of the confidentiality clause at the nexus of this entire dispute, reveals the disregard with which the B.C. judiciary has come to treat foundational aspects of Western society. We are witnessing in real-time the destruction of the various definitions, boundaries, protocols and standards that make up modern Canada. And it is being carried out with a shocking carelessness towards what lies at the heart of this process – racial favouritism...
Together with all the other outrages and absurdities foisted upon the country by the court system, this latest example of racial discrimination is turning Canada into an unpredictable, unstable and untrustworthy place to live, work and invest."
Left wingers will still call the Globe and Mail "centre-right".
