Thomas Berger, Indigenous Rights Champion, Dies

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Thomas Berger, Indigenous Rights Champion, Dies

Thomas Berger, who had a remarkable career fighting for indigenous rights in addition to being a former leader of the BC NDP and BC Supreme Court judge, has died at the age of 88. Former indigenous federal justice minister and Independent member of Parliament for Vancouver Granville, Jody Wilson-Raybould, said in a social media message that Berger was a "great champion of Indigenous peoples and rights. A true trailblazer who helped change this country for the better while personally sacrificing to do so," wrote Wilson-Raybould. (

Berger was the original lawyer for the Nisga’a Nation in the landmark Calder case in the 1960s and early ’70s, which established Aboriginal title in Canadian law.

After he was appointed to the B.C. Supreme Court in 1971, he headed the Mackenzie Valley Pipeline Inquiry from 1974-77. His report called for a halt to the pipeline until Native land claims were addressed. Native leader George Manuel called it “the best statement on Indian rights to come from any government since the Europeans first came to Canada.” ...

Mr. Berger was counsel for the Nisga’a elders who were plaintiffs in Calder v. Attorney-General for British Columbia (1973), a historic case in which the Supreme Court of Canada first acknowledged the existence of Aboriginal title to land.

Premier John Horgan said “His work as commissioner of the Mackenzie Valley Pipeline Inquiry resulted in a report highlighting unresolved land claims, as well as the threat to wildlife upon which the local Indigenous Peoples relied on for survival. An unprecedented public consultation process helped highlight what was at stake for the Indigenous peoples of the north. As a lawyer, judge and commissioner, he helped countless ordinary people in their struggles against powerful interests. He changed life in this province and in this country for the better.” ...

“He was involved in a judicial inquiry relating to the collapse of the Second Narrows Bridge (in 1958),” said his former law partner Don Rosenbloom. “The Ironworkers (union) retained Tom to handle what became a very well-publicized and controversial judicial inquiry into the collapse.”

In 1960, he took on the Workmen’s Compensation Board after it refused to accept a certificate by a doctor stating that miner Luis Battaglia suffered from silicosis. Battaglia hoped to get a pension, but died before he could receive it. A Royal Commission was eventually appointed to look into the WCB. ...

In 1962, Berger entered politics, and was elected as an NDP MP in Vancouver-Burrard. But he was beaten by Liberal Ron Basford in the 1963 federal election, and switched to provincial politics. He lost again in the 1963 provincial election, but was elected in 1966. ...

In 1967, Berger unsuccessfully challenged incumbent NDP Leader Bob Strachan for the provincial leadership. He was defeated, but Strachan wound up resigning in 1969 and Berger was elected provincial leader after a tough battle with Dave Barrett.

But the wily W.A.C. Bennett called a snap election and the NDP were beaten so badly Berger lost his own seat.

“I was never really comfortable on the campaign trail,” he admitted to The Vancouver Sun’s Eve Rockett in 1971. “I never got used to the constant handshaking and talking to people I’d never met before.”

He resigned and returned to the law, but in 1971 he was appointed to the B.C. Supreme Court, at only age 38. ...

Berger was legal counsel on the Calder case throughout the court levels, but the judgment was rendered after he was already sitting on the bench. The judges were split and the case was lost on a technicality. But it changed history.

“It was at that point in time in history that (Prime Minister) Pierre Trudeau announced, with Jean Chretien as the minister of Indian Affairs, that the federal government wanted to take a sober look at the whole thing,” said Rosenbloom. “They decided that they wished to sit down and started negotiating with the First Nations of Canada. The first up were the Nisga’a, because they had initiated the suit that went to the Supreme Court of Canada. It is of incredible importance, that case, because that’s what got the whole thing rolling.” ...

In 1974, Berger was appointed to head the Mackenzie Valley Pipeline Inquiry. He travelled widely and consulted extensively with First Nations. “’It’s part of the Canadian experience, coming to terms with the people who were here first,” Berger said in 1997. “Any civilized society has to do that — and it ain’t easy. We went to every village and listened to everyone who had something to say. 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 left the court in 1983, after having his knuckles rapped by the Canadian Judicial Council for criticizing the federal/provincial constitutional accord for removing Aboriginal rights. “I did what I thought I had to do,” he said.

In the end, Aboriginal rights were reinserted in the Constitution. The Nisga’a Nation honoured Berger’s pioneering work in Native rights by giving him a Nisga’a name, Halaydam Xlaawit, or “spiritual being of the mountain.”


 A very important man in the fight for justice for indigenous people in Canada. During his pipeline commisison he did what an ally should do, he went to every community and listened to every voice and then based his recommendations on those voices. The complete opposite of how Ottawa does "consultation" as required by the court cases that Berger helped to win.

laine lowe laine lowe's picture

I just commented in the other thread on Berger. Perhaps the two can be merged.

A truly exemplary ally to Indigenous people. He set important precedents for protect the rights of Indigenous people to protect their traditional lands from resource exploitation.


laine lowe wrote:

I just commented in the other thread on Berger. Perhaps the two can be merged.

A truly exemplary ally to Indigenous people. He set important precedents for protect the rights of Indigenous people to protect their traditional lands from resource exploitation.

I thought it actually shameful that the media did so little coverage of Berger's passing. He was pivotal to advancing Indigenous rights in defending their rights against resource developers.

ETA: They gave more coverage to freaking Rush Limbaugh for f*cking sakes.

I transferred your thoughtful post to this thread. There were two open when I posted so I posted in the thread with comments and not just links.

laine lowe laine lowe's picture

Thank you, Kropotkin.


We need so many more activists and advocates of Tom Berger's calibre. Let's ensure his memory lives on.


This is an excellent piece about his life and achievements.

Berger had an eminent career, marked by a lifelong commitment to Indigenous peoples and social justice.

One of his notable cases was the so-called Calder case, which asserted the right of the Nisga'a people of northwest B.C. to land, resources, and self-government. Early in 1973, Berger and his clients lost that case on a technicality. But they won the day on an important principle of constitutional law. In the Calder ruling (named for a Nisga'a chief), the Supreme Court of Canada recognized, for the first time ever, that Aboriginal title to land existed in law.

The Calder decision influenced the clause on Aboriginal rights, Article 35, that made its way (despite then prime minister Pierre Trudeau's initial resistance) into the 1982 package of constitutional changes we now know as the Constitution Act.

It also led, after decades of negotiations, to the Nisga'a Treaty of 1999, the first modern-day treaty in B.C.

But Berger's most lasting achievement, which should assure his place in history, was the Mackenzie Valley Inquiry, which he undertook shortly after the court ruling on Calder.