Canada loses a Legal Giant who served the Cause of Indigenous People

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Stuffing away my papers at the end of a British Columbia-Washington conference some years back, I was suddenly confronted by an agitated, self-important nabob from the Vancouver Board of Trade. He was upset at a story which quoted “radical” retired B.C. Supreme Court Justice Thomas Berger on Canada’s treatment of its Indigenous peoples.

Tom Berger, 88, died on Tuesday, and was eulogized by Prime Minister Justin Trudeau for his “pivotal role” in securing the rights of Aboriginal First Nations and for being one who listened and “empowered a generation of leaders to become voices for their own communities.” The PM’s father, PM Pierre Elliot Trudeau, once lamented that Berger made his life more difficult.

Why should we note Tom Berger’s passing on this side of the 49th Parallel? Because past mistreatment of Native peoples knew no boundaries, and redress in the form of empowerment and justice came in the 1970s on both sides of the Canada-U.S. border. And not easily. The 1971 Alaska Native Claims Settlement Act, as a price for construction of the Trans-Alaska Pipeline, put 44 million acres in the hands of Alaska native and village corporations. In the Great White North, that was the historic 1973 Calder vs. British Columbia case before the Supreme Court of Canada.

“Mr. Berger was counsel for the Nisga’a Nation in the landmark Calder vs. B.C. case which led the Supreme Court of Canada to acknowledge, for the first time, the Aboriginal title to the land,” Justin Trudeau said in a statement.  Added B.C. Premier John Horgan, “Thomas Berger believed in justice: That meant he had to address injustice.”

In 1974, Justice Berger was named by the elder Trudeau to head the Mackenzie Valley Pipeline Inquiry, looking at whether an oil pipeline should be directed down a great river of Canada’s north.  For the first time, a blue-ribbon panel decamped to native villages. Berger sat for hours listening to land claims and worries about impacts of the proposed pipeline on wildlife and fisheries. “It was an education for me and, because it had such a high media profile, in a sense an education for the whole country,” Berger said later.

The pipeline was never built.  The inquiry produced a report, in Premier Horgan’s words, “highlighting unresolved land claims as well as the threat to wildlife upon which the local Indigenous Peoples relied for survival. An unprecedented public consultation process helped highlight what was at stake for Indigenous Peoples of the north.”

Berger was in the 1960s a wunderkind of Canadian politics.  He was elected to the federal House of Commons, and then the British Columbia Legislature.  He became leader of the left-of-center New Democratic Party, with his face plastered across billboards bearing the slogan “Ready to Govern.” Didn’t happen: the NDP was defeated in 1969 by legendary B.C. Premier W.A.C. “Wacky” Bennett.

Losing his own seat and never comfortable on the campaign trail, Berger went back to life as a barrister. He was named in 1971 to the B.C. Supreme Court at the age of 38.  He quit the court in 1983 – shortly after Canada’s new constitution officially recognized Indigenous rights – and went back to representing such clients as Yukon natives, labor unions, and the Canadian Parks and Wilderness Society. He was recently consulted by the British Columbia government on strategies to stop the TransMountain Pipeline expansion, which will mean a seven-fold expansion on oil tanker traffic through the Salish Sea.

Berger kept practicing law until the age of 87 and was hoping to outlast cancer until one final ruling came down. “We have lost a giant,” said Horgan. But Canada’s Aboriginal First Nations gained legal standing, public recognition and influence, thanks in part to his life.

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I worked for Seattle Post-Intelligencer from 1973 until it ceased print publication in 2009, and SeattlePI.com from 2009 to 6/30/2020. During that time, I wrote about 9 presidential races, 11 Canadian and British Columbia elections‎, four doomed WPPSS nuclear plants, six Washington wilderness battles, creation of two national Monuments (Hanford Reach and San Juan Islands), a 104 million acre Alaska Lands Act, plus the Columbia Gorge National Scenic Area.

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