Tom Berger fought for Indigenous rights his whole life

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Justice Thomas Berger on stage at Vancouver Island University in 2013. Image credit: Vancouver Island University/Flickr

Sometime well after midnight during the summer of 1975, Judge Tom Berger hit a double.

The B.C. judge was heading the Mackenzie Valley Pipeline Inquiry. He held hearings in every Northwest Territories community which could be affected by the proposed projects (there were two competing proposals), no matter how small or remote.

He and his team went to tiny Nahanni Butte in southwestern N.W.T., to Fort Good Hope on a bend in the Mackenzie River in the middle of the territory, to Tuktoyaktuk on the Arctic coast, and to the larger government and administrative centres of Yellowknife and Inuvik.

Berger gave a voice to the people -- and especially the Indigenous elders -- they never previously had for any major government decision. No similar exercise had ever consulted Indigenous people in that way before.

The softball game happened during Berger's and company's visit to the Gwich'in community Tetlit Zheh, then known as Fort McPherson, just slightly north of the Arctic Circle, on the east bank of the Peel River.

It was a pickup game under the midnight sun, involving local people, media covering the inquiry, and inquiry staff and participants. Whit Fraser, reporting for CBC at the time, played catcher for one of the teams. The next evening's television news gave an account of the game, including Berger's two-base hit. 

Calder case, James Bay Treaty, and Mackenzie Valley Inquiry

Tom Berger died earlier this week at the age of 88. Stories about him note that he was a politician, elected both to the Parliament in Ottawa and legislature in British Columbia, one-time leader of the B.C. New Democrats, a lawyer who defended Indigenous rights, a judge, and chair of the 1975 inquiry into proposals to transport oil and gas down the Mackenzie Valley corridor to markets in southern Canada and the U.S.

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.

In its day, the Mackenzie Valley Inquiry had an impact comparable to that of the more recent Truth and Reconciliation Commission on residential schools. For the first time ever, Berger placed Indigenous considerations at the heart of a federal government decision-making process on natural resource development.

At around the same time as Berger was doing his work, a little-known judge in Quebec by the name of Albert Malouf had forced the government of that province to negotiate with the Cree and Inuit people of northern Quebec.

Malouf put a stop to a massive hydro-electric project in the James and Hudson's Bay region. He told the Quebec government Indigenous peoples had rights and interests it had to accommodate. The Quebec Court of Appeals overturned Malouf, but rather than take their chances at the Supreme Court of Canada, both sides agreed to negotiate what became the James Bay Treaty.

The Mackenzie Valley process was similar to James Bay, with an important difference.

The Quebec Indigenous groups had never signed any treaties with the Crown. They argued they had never given up Aboriginal rights and title to their traditional homeland.

The Dene and western Inuit (the Inuvialuit) of the Northwest Territories had signed two of Canada's numbered treaties, numbers 8 and 11. The government of Canada took the position the Indigenous groups had thus given up their rights to and ownership of the land and resources.

Indigenous people who testified before Berger told a different story. They told the judge their understanding of those treaties was that they were for peace and friendship, not a way to take away their rights and land base.

'You have your treaty; you cannot be moved'

In Tetlit Zheh, one elder, Johnny Kaye, a former chief who had been present at the treaty signing in 1921, told Berger the treaty commissioner, a certain Henry Conroy, clearly said to Gwich'in Chief Julius his people would not be giving up any of their traditional land or other rights by signing Treaty 11.

To the contrary, Conroy assured Chief Julius Treaty 11 would protect the Gwich'in in the event white men came into their territory and tried to exploit its resources.

"And then we heard that we turned our land back to the government, which is not true," Kaye testified.

"Half a century ago, Henry Conroy told us we would be able to hunt and do our living any place we like."

Kaye related to Berger how the treaty commissioner underscored that fact. Conroy, Johnny Kaye related, pointed to Black Mountain, on the far side of the Peel River, and told Chief Julius and the Gwich'in leadership:

"You know yourself as well as I know that no one will move that mountain away. Well, you will be the same … Now, you've got your treaty, and as long as you are treaty, no one will move you away."

Johnny Kaye's words, and the testimony of hundreds of other northern Indigenous witnesses, together with detailed maps and other documents showing their traditional hunting, trapping and fishing territories -- and expert testimony on the meaning of Aboriginal rights -- convinced Berger.

Pierre Trudeau's Indian Affairs minister Jean Chrétien had written the terms of the Mackenzie Valley Inquiry in such a way that it could not recommend the pipeline project be halted, permanently. And so, Berger did the next best thing.

In his report, the B.C. judge recommended the pipeline project be delayed for at least a decade to allow the federal government time to settle outstanding land claims for all the Indigenous groups in the region.

It has taken far more than a decade, but the governments of both Canada and the N.W.T. have, since starting negotiations in 1975, reached land and resource agreements with six of the groups in the Mackenzie Valley and on the western Arctic coast, including the Gwich'in and the Inuvialuit.

Through his determination to hear the voice of the people back in 1975, Tom Berger made the considerable progress achieved so far possible.

Berger never held high political office. He was never in a federal or provincial cabinet, and his brief stint as New Democratic leader in B.C. ended with defeat, both his party's and his own.

But Berger left a larger legacy than many who had more power and held higher office.

In a way, what Tommy Douglas did for universal health care in Canada, Tom Berger did for Indigenous rights. He deserves to be long remembered, even revered, for that contribution.

Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble's politics reporter.

Image credit: Vancouver Island University/Flickr

Editor's note: A previous version of this story incorrectly stated that hearings for the Mackenzie Valley Pipeline Inquiry were held in 1973. In fact, they took place in 1975. The story has been corrected.

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