In 1975, Thomas Berger travelled to the remote Yukon village of Old Crow to hear from the Vuntut Gwitchin people about the potential impact of the Arctic Gas pipeline. As the head of a royal commission on the development proposed by a string of major oil companies, he visited 35 communities – every settlement in the Mackenzie Valley and the Western Arctic. Travelling with a sleeping bag, sometimes by dogsled or canoe, he visited people in their homes, and listened through interpreters to testimony in their traditional language. His final report – backed by 900 exhibits and more than 32,000 pages of testimony – resulted in a historic decision by the federal government to deny the pipeline. Mr. Berger ensured that economic imperatives would not override the interests of Indigenous people, and the land and animals they depend upon.
Mr. Berger, a B.C. Supreme Court justice, lawyer, politician and author, champion of Indigenous rights, and pioneer of environmental law, died Wednesday at the age of 88. He helped define Indigenous rights in Canadian law, and shaped the future of development in Northern Canada. His work in the Mackenzie Valley created the nation’s model of environmental assessments. And his unwavering beliefs led him to clash with a prime minister, derailing his promising career on the bench.
Thomas Rodney Berger was born on March 23, 1933, in Victoria, the son of Maurice Theodore Berger and Nettie Elsie Perle (née McDonald) Berger. His father’s career as an RCMP officer meant he moved around, attending elementary school in British Columbia and Saskatchewan before settling in Vancouver, where he studied law at the University of British Columbia. Years later, he returned to teach law at UBC and led efforts to found a First Nations House of Learning there. He leaves his wife, Beverly, their daughter, Erin, and son, David.
As a lawyer, Mr. Berger carved out a niche as an advocate on social justice matters. He represented the Iron Workers Union in a strike after an engineering error led to the deadly collapse of the Second Narrows Bridge in 1958. He later fought for redress for the persecution, during the Second World War, of Japanese-Canadians. But it was as a defender of Indigenous rights that he first gained national prominence.
In 1963, Mr. Berger took the case of two Snuneymuxw men, Clifford White and David Bob, who had been convicted for hunting deer out of season, to the Supreme Court of Canada. Lawyer Doug White, chair of the B.C. First Nations Justice Council, said Thursday that Mr. Berger changed the future for his Snuneymuxw community, persuading the court to confirm the existence of a 110-year-old treaty that no government had been willing to recognize.
What set him apart, to the Indigenous communities he worked with, was his willingness to listen. Mr. White would sit down for coffee with Mr. Berger, years later, to find out how he made his breakthroughs.
“Knowledge of the treaty was in the oral tradition. He listened to our elders, he gave them voice,” Mr. White said. “A lot of really incredible, seminal work was done by him as a very young lawyer.”
Mr. Berger took a similar approach in the Mackenzie Valley pipeline inquiry. He would later say that he could not assess the impact of industrial development without hearing directly from those whose lives would be altered.
“No academic treatise or discussion, no formal presentation by the native organizations and their leaders,” he said, “could offer as compelling and vivid a picture of the goals and aspirations of native people as their testimony.”
It was through his work with the Snuneymuxw case that Mr. Berger met Nisga’a chief Frank Calder, who then hired the young lawyer in 1967 to represent his people in what would become know as the Calder case. That led to the groundbreaking decision of the Supreme Court of Canada to acknowledge the existence of Aboriginal title to land. The case laid the foundation for virtually all Aboriginal land claim treaties that followed.
“No non-Indigenous person has done more to advance the rights of Indigenous people in Canada and globally,” Bob Rae, Canada’s ambassador to the United Nations, said in reaction to Mr. Berger’s death. “He inspired thousands and enlightened millions.”
In a statement on Thursday, Prime Minister Justin Trudeau remembered Mr. Berger “as the consummate advocate. … Canada is a stronger, fairer, and more inclusive country thanks to Thomas’s lifelong dedication to social justice and public service.”
Mr. Berger tried his hand in politics, and came close to serving as premier of B.C. He served as the New Democratic Party MP for Vancouver–Burrard from 1962-63 before switching to the provincial arena. He sat as an NDP MLA from 1966-69, rising to become leader of the opposition, before a thorough election loss to the Social Credit’s W.A.C. Bennett ended his elected career.
He was appointed in 1971 to the B.C. Supreme Court at the age of 38. He would lead three royal commissions while on the bench, but his tenure ended abruptly after he raised concerns about the crafting of the Charter of Rights and Freedoms.
In 1981, Canada was in the final stages of patriating the Constitution. Mr. Berger waded into controversy with a commentary printed in The Globe and Mail, in which he criticized a decision to remove Aboriginal rights from the document, as well as the absence of a veto for Quebec over constitutional change.
Mr. Berger’s intervention in the framing of the Constitution ultimately ensured the inclusion of Aboriginal and treaty rights, but he paid a high price. Prime Minister Pierre Elliott Trudeau complained about “the judiciary getting mixed into politics,” and said, “I hope the judges will do something about it.” Mr. Berger was subsequently investigated by the Canadian Judicial Council and only narrowly avoided being fired from the bench.
Bora Laskin, then chief justice of the Supreme Court of Canada, did not let the affair go. “A judge has no freedom of speech to address political issues which have nothing to do with his judicial duty,” he said in a rare speech. In an obvious reference to the incident, he added that any judge who feels so strongly that he must speak out “is best advised to resign from the bench.”
Mr. Berger did resign. His friend Mary Ellen Turpel-Lafond, an Indigenous lawyer and a former Saskatchewan judge, said Mr. Berger was unafraid to stand up for what he believed in, but he paid dearly for it.
“He was a rising star, he was well on a track to rise to the Supreme Court of Canada. He was disciplined, I think, unfairly,” she said. “He suffered for standing up for what was right. He never expressed regret to me.”
Ms. Turpel-Lafond said he embraced big battles from the start of his career, enduring ridicule from other lawyers when he first picked up the Calder case, challenging the longstanding position of governments and the courts to assert that Aboriginal title had indeed existed at the time of the Royal Proclamation of 1763. But she said he was driven by purpose: “He was someone who wanted Canadian law to embrace Indigenous people’s experiences and laws, and to lift up Indigenous peoples in Canadian law.”
Mr. Berger was named an officer of the Order of Canada in 1989, and received the Order of British Columbia in 2004. In between the commissions and teaching Constitutional law, he wrote. His published work includes A Long and Terrible Shadow: White Values, Native Rights in the Americas, and Fragile freedoms: Human rights and dissent in Canada.
In his 2002 memoir One Man’s Justice: A Life in the Law, Mr. Berger wrote that the legal system is a tool to create a better Canada. “I’ve never become jaded. Weary, dispirited, furious, frustrated, perhaps; but I’ve never lost my faith in the law. I was animated by a belief – and now it is a profound belief – that the law as enforced in the courts can move us incrementally towards a just society.”
Speaking in the Legislature on Thursday, B.C. Premier John Horgan noted that of all Mr. Berger’s books, his bestseller was his report on the Mackenzie Valley pipeline inquiry. “I have a copy of it in my library at home, dog-eared and always a reminder of the work that was done by those who came before us to this place,” he said. “Tom Berger spent a lifetime moving us toward a just society. Canada has lost a giant.”
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