The legal and constitutional reconciliation is embodied in, on the one hand, first nations having constitutionally guaranteed aboriginal title and, on the other, the confirmation of the sovereignty of the Crown both federal and provincial.

The second major principle, emphasized in Delgamuukw but already well developed in previous Canadian jurisprudence relating to aboriginal interests, is that of the honour of the Crown. In general, this principle requires that Parliament, legislatures, and governments act consistently and in good faith in honouring agreements and in respecting aboriginal rights and interests. The historic embodiments of this principle are the Royal Proclamation of 1763 and the related Treaty of Niagara.

Maintaining the honour of the Crown is itself a moral obligation, one that requires not merely the legalistic following of the letter of legislation and agreements, but rather having appropriate laws and policies in the first place. The ruling makes clear that the honour of the Crown is at stake in achieving reconciliation through negotiation. As the Chief Justice states, "the Crown is under a moral, if not a legal, duty to enter into and conduct these negotiations in good faith."

The third major principle is that local aboriginal communities (whether Indian, Metis, or Inuit) are unique and distinct legal and constitutional entities within Canada. Indian and Inuit communities are unique in having their origins prior to Canada’s, distinct in having retained their pre-contact identities, and unique and distinct in possessing collective rights particular to their own history and place. In previous cases the Supreme Court has not hesitated to use the term "distinct society" as the measure of an aboriginal community (and, of course, to define an aboriginal right as a practice or circumstance integral to a particular society’s distinct identity).

Thus, to focus on our province, the simple but utterly important actuality is that every recognized local native Indian community (that is, first nation) has both its identity and its rights confirmed and guaranteed. This constitutional status of first nations, which is a status municipalities can for the moment only dream of, was evident prior to Delgamuukw, but it is amplified in by the ruling. First nations and their rights are here to stay.

While other principles can be identified in the ruling, it is the three that I have enumerated that are the most consequential. While the consequences are many, in our context today in British Columbia I suggest that the Delgamuukw principles lead us directly to two further principles or ideals. The first of these is co-equality of local communities. The second, following from the first, is diplomacy as the guiding principle in relations between first nations and their neighbouring communities.

The critics

The Delgamuukw ruling brings major elements of certainty to the legal and constitutional debates about aboriginal rights. Within British Columbia, the ruling provides the final legal and constitutional rebuttal to the major myths, assumptions, and doctrines that underlie and explain hostility to native claims in general, and to the principle of aboriginal title in particular.

Fortunately, of course, court pronouncements do not end political or public debate. However, the ruling does place the province’s most prominent critics of aboriginal rights in the unenviable position of being out of step with the nation’s highest court, and with established legal thought in the rest of the country. Also, as they have been consistently for the last 15 years, the critics remain out of step with public opinion in the province, which continues to support the principles of aboriginal rights and of treaty negotiations.

In their desire to have British Columbia exempt from Delgamuukw and from the policy beliefs that have been long-established in the rest of Canada, and in their belief that the provincial majority has the right to impose its views on ethnic minorities, the prominent BC critics are taking the same approach as Parti Quebecois leaders take within Quebec. In effect the critics want a special status for British Columbia, one in which we British Columbians can pick and choose among the rulings of Canada’s highest court and can return to those idyllic days when the majority could dictate or deny aboriginal rights. The fact that the prominent critics are fervent opponents of special status for Quebec says much about the consistency and depth of their thinking.

As their hot-line shows, their newspaper columns, and their public statements have made clear, the prominent critics do not agree with the three principles that make up the core of the Delgamuukw ruling. The critics do not accept that first nations are distinct societies with collective rights within Canada. The most prominent critics of aboriginal rights are either ignorant or contemptuous of the honour of the Crown — or, worse, they assume that we live in a populist republic in which there is no higher political God than current majority sentiment expressed on an issue-by-issue basis, locally or province-wide. It is ironic that the current Leader of Her Majesty’s Loyal Opposition has fallen victim to this assumption.

Nor do the critics wish to promote reconciliation; instead, they wish to abrogate the agreement establishing the BC treaty process and they hope to impose their own solutions rather than to negotiate in good faith with First Nations. Fantasizing that the Constitution and the rule of law no longer apply, they desperately seek ways of voiding the Delgamuukw ruling itself.

From all this a simple consequence results: those who choose to continue to take the critics seriously are choosing to take the rule of law and the Constitution less seriously.

The Place of First Nations

British Columbia English has still not evolved uniform terminology to refer to aboriginal groups, with the inevitable result that there is often misunderstanding and confusion as to the scope and applicability of both claims and rights. Our leading reporters and columnists still make fundamental errors. Among native Indians, the village-level community is the primary social and political entity (although the language group, consisting of several communities of common cultural heritage, can also be important politically).

Until recent decades, the word "nation" was commonly used in British Columbia and the rest of Canada to refer to village or tribal-level Indian communities. The Royal Proclamation uses "tribe" and "nation" as synonyms, while the Oxford English Dictionary continues to give "tribe of North American Indians" as one major definition of "nation." Although the word is a provocative irritant to the major critics, who seem to assume that any Indian "nation" must be bent on joining the United Nations as a sovereign entity, the word remains perfectly ordinary and acceptable in the aboriginal context — and politically neutral to those knowledgeable about our history. The term "tribal nation" is at times used to refer to the comprehensive, but still very much locally-based, cultural group (for example, Nisga’a, Shuswap, Sto:lo).

"First nation" has emerged in the last decade as the most common term in this province for village-level community, although at times (as in the BC treaty process itself) it is used more loosely. With few, if any, exceptions, each first nation continues to have a legal identity as a particular "Indian band" formed and operating under the Indian Act. In my comments today I use the word "community" to mean a first nation — or a municipality.

What must be understood is that among native Indian populations in British Columbia it is only the local community (that is, first nation) that can possess aboriginal title and other aboriginal rights. Individual Indians (and sub-groups such as houses or clans) can exercise aboriginal rights, but only as members of a particular first nation. No province-wide or countrywide Indian grouping has or can have any constitutional status or ability to possess aboriginal rights.

For most practical purposes, municipalities do not need to concern themselves with any aboriginal grouping other than first nations, who will also be Indian Act bands for various legal purposes. The same will generally be true for school boards and regional districts, although here there is greater likelihood that the local tribal nation will be of importance. (The larger towns and cities, however, do have substantial numbers of aboriginal residents who may be represented by such interest groups as the United Native Nations or Metis associations.)

Co-Equality of First Nations and Municipalities.

The principle of equality of individual persons is one of the foundations of Canadian political and constitutional thought. At one time this principle was highly controversial, with opponents pointing to the actual individual differences in such matters wealth, education, character, gender, personal abilities, ethics, and civic contributions. Yet, today we take for granted that each person as of equal moral worth entitled to equal civil rights and equal political voice. I am suggesting that we apply this same sort of thinking to local communities — that we regard first nations and municipalities as fundamentally equal to each other.

For first nations and municipalities to regard each other as of equal moral worth requires some fresh thinking on both sides. From the first nations’ perspective, municipalities can quite understandably be seen not only as mere creations of the province but also as undignified creatures kept on a rather short leash. The municipal model is made even less palatable when the prominent critics present it as one first nations should follow. (The Sechelt First Nation is often said to have accepted such a model; however the Sechelt negotiated the terms of its own special legislation, and with Parliament not the provincial legislature.) In essence, the municipal model rests on the same principles as does Indian band government under the Indian Act and is thus the polar opposite of the models of aboriginal self-government that first nations are pursuing. It is in good part for these reasons that first nations were generally opposed to allowing municipalities a role of their own in the treaty process.

My impression is that there is no uniform municipal perspective on first nations. Any such perspective at the present time would likely focus on practical aspects, noting that first nations typically have much smaller populations and much higher rates of social and economic problems. What is quite clear is that municipal leaders do not at present look upon first nations as sources of models or ideas or support that could be of benefit to municipalities.

Nevertheless, from a perspective that embraces both first nations and municipalities, there is a substantial similarity. In the human dimension, both are collectivities of local residents who have similar daily and longer-term concerns. In the governance dimension, both are local governing authorities. The day-to-day activities, issues, and operations handled by their officials are amazingly similar. As a rough estimate I would say that eighty percent of the time and effort of first nations politicians and officials is spent on the same things that municipal politicians and officials spend theirs on.

Given these actual similarities, it seems to me a small step to accept first nations and municipalities as having equal moral worth. Perceiving the two as having equal human value does not mean that either will be forced to be identical to the other. For this reason, I suggest the term "co-equality", rather than simply "equality" — to indicate that first nations and municipalities are different and will remain so, but also to acknowledge that they are also fundamentally similar insofar as they are composed of local communities of British Columbians led by community governments concerned with local needs.

The Principle of Diplomacy Between Communities

However much one may enjoy provoking the critics to choke on their own misperceptions, I stress that I am merely invoking some elements of international diplomacy, and strictly as a means towards better community relations at the local level. We are not talking about embassies in the other’s territory, about border checkpoints, or about diplomatic immunity from parking tickets.

Diplomacy has three working assumptions that are especially germane. First, participants are equal. Second, recognition of similarities and common goals provides a basis for dealing with differences. Third, having regularized channels of communication lessens the chance of conflict and simplifies resolving any that does occur. Put simply, diplomacy is the art and practice neighbourliness.

The methods of diplomacy are many, but formal protocol is always one major attribute. Protocol allows each side to display the symbols of its history and values, and it allows each side to demonstrate its respect for the history and values of the other. Protocol also allows each side to display its leaders and to acknowledge the position of leaders on the other side. Protocol prevents surprises (including unintended omissions or insults), and so provides predictability. Mutual respect for protocol is a mark of mutual respect between the participants and is itself thus an important manifestation of neighbourliness.

The Practice of Diplomacy Between Municipalities and First Nations

Many neighbouring first nations and municipalities already have good relations. Typically, these rest on agreements or contracts relating to specific services or activities. However, in few, if any, cases has fully developed diplomacy been attained — that is, the existence of an active relationship having the following features:

1. The councils and officials on both sides genuinely accept the principle of co-equality and regard good relations as a policy imperative.
2. Each government invites representatives of the other to all major official community functions, where their presence is acknowledged and welcomed.
3. There are regular events intended specifically and primarily to demonstrate the principle of co-equality and the desire for good relations. For example, perhaps each council hosts an annual feast for the councillors and senior officials of the other community.
4. Individual councillors and senior staff are personally acquainted with their counterparts in the other community’s government and are reasonably well informed about the issues and concerns facing them. There is no hesitancy about picking up the phone to talk with a counterpart, and there are occasional visits to the other’s office or work location.
5. There is an ongoing issues audit. Current issues of common concern are identified, as are current and possible future issues of concern to one side that may cause friction with the other. Common action is taken to resolve issues of potential discord.
6. Official symbols, such as municipal coats of arms and maces, may be modified or revised to take account of the presence and history of the other community and to symbolize co-equality. Less obvious symbols, such as street and subdivision names, may also be seen as relevant.
7. Leaders on both sides are well aware of the fundamental differences between the two communities and thus of the need for asymmetry in their relationship. For example, families or houses or clans are seen as components of community on the aboriginal side and so the mayor knows the worth of an invitation to a potlatch and the respect he or she conveys (and gains) by attending a family funeral.
8. In general, among leaders and public on both sides there is a sense of satisfaction with the relations between their communities, and recognition that in a certain sense they form a community of communities.

Attaining a state of fully developed inter-community diplomacy is not an over-night task. Given that first nations generally have fewer resources and that their officials face debilitating demands upon their time and attention, the initiatives will in practice often have to come from the municipal side. Given that minorities with grievances have long memories, and that many good words have been offered without follow-up in the past, those making the initiative will in some cases need extra-strength patience and credibility.

In most cases, however, the beginnings have already been accomplished, with the Union of BC Municipalities having played an important leadership role in this endeavour for more than a decade.

In a few cases, relations are already on a firm and evolving foundation. The Tsleil-Waututh (Burrard First Nation) and North Vancouver District, and the Katzie First Nation and Pitt Meadows provide two examples that I have some acquaintance with. There are relevant models also in the corporate sector, with perhaps the most notable and progressive example of relations with first nations having been developed and put into practice by BC Tel, through its Aboriginal Liaison Officer, Paul Peters.

Where beginnings have not been made, and in those few cases where relations are actively hostile, indirect or outside facilitation may be appropriate. An indirect beginning could take the form of hiring a researcher to organize local volunteers (jointly from both communities) to prepare a history of key historical developments in both communities, to collect documents and photographs for display in a place welcoming to members of both communities, and to provide a list of the major annual events and ceremonies in both communities.

A more direct beginning could involve hiring a consultant in the emerging specialty of community-level diplomacy. Here a first stage could be an assessment of the state of relations and factors bearing upon including, in the case of larger communities, the role of the media.

(Here I am obligated to point out that my department at UBC produces graduates who are well versed in the issues and principles of both municipal and first nations governance. Several have reached the stage at which I would pronounce them certified specialists — their phone numbers are available upon request.)

The Treaty Context

The BC Treaty process is critical for all first nations and important to most municipalities. Yet, too many burdens have been placed upon it. Even were it not overloaded with two many tables and too little funding, the process could not by itself develop the widespread prior trust, respect, and confidence that are essential if the final treaties are to be more than words on paper. Much has been said about the need for education of the non-aboriginal public to this end, but the reality is that those not directly affected have little motive to pay attention to it, and those whose interests are directly affected will dismiss it as propaganda.

The Benefits of First Nation — Municipal Diplomacy

The immediate benefits of community-level diplomacy are just that: immediate benefits in the form of better decisions and better programs and, less tangibly, in the satisfaction that derives from good government and the minimizing of disagreement.

Two examples illustrate my point. Both are cases in which a first nation has its principal reserve within a municipality and wanted to develop condominiums. In one case the proposal, its first phase now complete, has been the centre piece of continual friction and public hostility (including a road blockade by Whites), even though the development is picayune compared to giant transportation facilities already imposed on the reserve by the province. Almost unknown is the harmonious relation that has developed in the other case. Here an escalating controversy over the first nations’ desire for municipal street connections quickly subsided when a municipal councillor sought advice on how to approach the First Nation. Neither side had any doubt about the wisdom of proceeding diplomatically. The road was built and the condo development went ahead, with agreement that the municipality’s building standards would be met — and enforced by the municipality’s inspectors. Pragmatism prevailed — not least because the Chief and Council realized that municipal inspection approval would bring a better price for the condos.

In the longer term, most municipalities and almost all first nations can build on local diplomacy to gain benefits from the treaty process. Municipalities have complained much about their lack of influence in the process, but in their Pavlovian turning to the province for a solution they have missed seeing the opportunity waiting at home with their neighbours.

Direct bilateral local diplomacy outside the treaty process, but focusing specifically on treaty subject headings, provides a rich potential for both municipalities and first nations to further their common and individual interests — especially by giving them the opportunity to identify those interests in the first place. This potential is greatest in the major urban areas, but it exists almost everywhere. The relevant subject headings will differ somewhat from place to place, but most will be the everyday matters of local government. First nation self-government provisions will, of course, be front and centre.

For first nations, the benefits of this bilateral diplomacy outside the treaty process are substantial. Casting off the old inward-looking philosophy and accepting the new diplomacy opens ways to creative problem solving and positive community development within the first nations themselves. Community empowerment comes through reaching out and coming to know one’s neighbours. Hence, the seeming paradox that the first nations most committed to strong self-government are those that will most welcome involvement with municipalities.

Local diplomacy opens the way to meaningful public education. Treaty-oriented local diplomacy brings municipal leaders, who form the established core of public opinion leaders throughout the province, into a focused learning situation that deals directly with the matters that are the subjects of the critics’ misperception and miseducation. Indeed, giving local community leaders the opportunity and the incentive to link their communities’ interests to the treaty process seems to me to be the only workable way of engendering local-level and province-wide appreciation of the treaty process.

(It might even be the case that the treaty process overload could be reduced, to the advantage of all parties, if first nations were to propose that for the next several years the negotiating tables would not deal with the matters the first nations wished in the meantime to pursue with their municipal neighbours. The tables could thus focus on the more economically and politically sensitive subject headings, presumably those relating to natural resources allocation and development.)

Generally, however, the most tangible benefit to the first nations would be the possibility of municipal support for their positions at the treaty tables. Municipal leaders do have a representative role that is independent of the Municipal Act and in this role, acting on behalf of their communities, they can provide a powerful political resource for first nations to call upon. Positions and proposals that had been co-operatively developed locally would be both technically and politically more difficult for the so-called "senior" governments to oppose or to interfere with.

Following a Yukon precedent, a first nation could even include a municipal representative on its negotiating team. Who knows, since the Agreement establishing the BC Treaty Process allows any party to bring any matter to the table, a first nation could even propose that the local treaty grant self-government and constitutional status to its partner municipality.