BERGER, Tom (Hon. Thomas Rodney) (1933- )




Author Tags: Civil Rights, Essentials 2010, First Nations, Law

QUICK REFERENCE ENTRY:

The most influential B.C. author in Canadian history could be Thomas Berger who, as commissioner of the Mackenzie Valley Pipeline Inquiry, wrote an extensive report, Northern Frontier, Northern Homeland (1977), which has sold more copies than any other federal government publication. Berger’s stalwart role in curbing development of the north for environmental and sociological reasons continues to have a profound impact on the people and ecology of Canada. In addition, Berger, as a lawyer, has fundamentally enhanced the concept and viability of self-government for aboriginal Canadians since the 1960s.

Thomas Berger’s memoir One Man’s Justice: A Life in the Law (2002) spans 40 years of precedent-making cases since 1957 and includes the landmark case of (Frank) Calder v. British Columbia in 1971, during which Berger asserted that aboriginal rights must have a distinct place in Canadian law. In 1973, the Supreme Court of Canada concurred. Berger’s success in the Calder case laid the foundation upon which most modern treaty-making cases have been argued.

In his book Fragile Freedoms: Human Rights and Dissent in Canada (1981), Berger recounts his abiding concerns for civil rights, and in A Long and Terrible Shadow (1991) he surveys European and aboriginal relations in the Americas since 1492. In 1991, Berger was appointed Deputy Chairman of the first independent review commissioned by the World Bank to examine the implementation of resettlement and environmental measures in the Sardar Sarovar dam and irrigation projects in India. He co-authored a 360-page report critical of the World Bank’s support for a project that would displace nearly 100,000 people. In 1997, he was part of an international human rights team that went to Chile to assess the social and environmental impact of a major dam project on the Biobio River.

Born in Victoria in 1933 of Swedish descent, Thomas R. Berger was called to the bar in 1957. He was later elected to serve the constituency of Vancouver-Burrard, both federally and provincially, and was narrowly defeated by Dave Barrett in his bid to become leader of the provincial New Democratic Party in the early 1970s.

Berger served as a B.C. Supreme Court judge from 1971 to 1983, during which time he conducted the aforementioned pipeline enquiry. Accorded more than a dozen honorary degrees, Berger has served as chair of SFU’s J.S. Woodsworth campaign, which set out in 1984 to raise one million dollars for the J.S. Woodsworth Endowment Fund in the Humanities.

Berger received the Order of Canada in 1990 and the Freedom of the City of Vancouver in 1992.

After twelve years as a judge in the Supreme Court of British Columbia, Berger returned to the practice of law and represented the province in a lawsuit against tobacco companies. Berger is the subject of a biography by Carolyn Swayze called Hard Choices: A Life of Tom Berger (1987), and he remains active in the B.C. Civil Liberties Association. Other Berger titles are Village Journey (1985) and Northern Frontier, Northern Homeland (1988, rev. ed.). Other authors who have worked extensively in northern B.C. include linguist Sharon Hargus and anthropologists Diamond Jenness, Robin Ridington and Hugh Brody.


FULL ENTRY:

Possibly the greatest and most influential British Columbian ever, Tom Berger is best known as the commissioner of the Mackenzie Valley Pipeline Enquiry. Tom Berger's dual professional life in law and politics has fundamentally enhanced the concept and viability of self-government for Aboriginal Canadians since the 1960s. Berger’s memoir One Man's Justice: A Life in the Law (2003) spans 40 years of precedent-making cases since 1957 and includes the landmark case of (Frank) Calder v. British Columbia in 1971, during which Berger asserted that Aboriginal rights must have a distinct place in Canadian law. In 1973, the Supreme Court of Canada concurred. Berger's success in the Calder case laid the foundation upon which most modern treaty-making cases have been argued.

As the commissioner of the Mackenzie Valley Pipeline Enquiry, Tom Berger wrote an extensive report, Northern Frontier Northern Homeland (1977), which sold more copies than any other federal government publication. In his book Fragile Freedoms: Human Rights and Dissent in Canada (1981), Berger recounts his abiding concerns for civil rights and in A Long and Terrible Shadow (1991) he surveys European versus aboriginal relations in the Americas since 1492. Berger’s abiding interest in the moral and legal rights of indigenous peoples has spread his influence beyond Canada. In 1991 he was appointed Deputy Chairman of the first independent review commissioned by the World Bank to examine the implementation of resettlement and environmental measures in the Sardar Sarovar dam and irrigation projects in India. He co-authored a 360-page report critical of the World Bank's support for a project that would displace nearly 100,000 people, Sardar Sarovar: Report of the Independent Review (1992). In 1997, he was part of an international human rights team that went to Chile to assess the social and environmental impact of a major dam project on the Biobio River.

Born in Victoria on March 23, 1933 of Swedish descent, Tom Berger was called to the bar in 1957. He was later elected to serve the constituency of Vancouver-Burrard, both federally and provincially, and was narrowly defeated by Dave Barrett in his bid to become leader of the provincial New Democratic Party in the early 1970s. Berger served as a B.C. Supreme Court judge from 1971 to 1983, during which time he conducted the aforementioned pipeline enquiry. Accorded more than a dozen honorary degrees, Berger has served as chair of SFU's J.S. Woodsworth campaign, which set out in 1984 to raise $1 million for the J.S. Woodsworth Endowment Fund in the Humanities, and he received the Order of Canada in 1990. He was accorded Freeman of the City status in Vancouver in 1992. After 12 years as a judge in the Supreme Court of British Columbia, Tom Berger returned to the practice of law and has represented the province in a lawsuit against tobacco companies. "I always made my way back into law practice," he once wrote. Berger is the subject of a biography by Carol Swayze called Hard Choices: A Life of Tom Berger (1987) and he remains active in the B.C. Civil Liberties Association. Other Berger titles are Village Journey (1985) and Northern Frontier Northern Homeland Revisited (1988).

BOOKS:

Berger, Tom. Northern Frontier Northern Homeland (Queen's Printer, 1977).
Berger, Tom. Fragile Freedoms (Clarke, Irwin & Co., 1981).
Berger, Tom. Village Journey (Hill and Wang, Farrar Strauss, 1985).
Berger, Tom. Northern Frontier Northern Homeland Revisited (Douglas & McIntyre, 1988).
Berger, Tom. A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992 (Douglas & McIntyre, 1991).
Berger, Tom. Sardar Sarovar: Report of the Independent Review (Ottawa: Resource Futures International, 1992).
Berger, Tom. One Man's Justice: A Life in the Law (Douglas & McIntyre, 2003).

ABOUT BERGER

Swayze, Carolyn. Hard Choices: A Life of Tom Berger (Douglas & McIntyre, 1987).

[BCBW 2010]

One Man’s Justice, A Life in the Law (D&M $40)
Review



A MOVEMENT TO DRAFT TOM BERGER TO LEAD the provincial NDP back from oblivion hasn’t mobilized yet—so let me give it a nudge. He is one of the rare politicians of the Left Coast, or any coast, for that matter, who hasn’t sullied the word integrity. I remember once asking the prominent Toronto lawyer Clayton Ruby for an interview and he turned me down flat. He said he was only interested in making history, not commenting on it. Arrogant S.O.B. I thought then. I was a much younger filmmaker at the time. Now, reading Tom Berger’s One Man’s Justice, A Life in the Law (D&M $40), that story comes back to me. A few lawyers actually do make history.

Berger’s memoir spans a 40-year career that has been vital to Canada.

Our freedoms and rights were originally debated, fought over and finally enshrined in laws and charters because of the work of people like Tom Berger. In this retrospective, Berger dissects the twelve cases where he thinks he helped make a difference.

For those who are relatively young or new to British Columbia, Thomas R. Berger is a Vancouver lawyer much honoured by his country as Queen’s Counsel, Freeman of the City of Vancouver and Officer of the Order of Canada. He has twelve honourary degrees. He is a former Justice of B.C. Supreme Court, famous for heading various Commissions, and for his successful pleadings before the Supreme Court of Canada. Many forget he was also leader of the provincial NDP briefly, before Dave Barrett took over and became premier. Berger was a one-term MLA for the Kitsilano area and he’s published three previous books.

There are few social activists who can claim to have scaled the heights of legal power and political power, resigned over principle, and accepted defeat in the political process, continuing to do good work. The peanut farmer Jimmy Carter comes to mind.

Berger almost invented “land claims.” The Frank Calder case that Berger argued is one in which the Nisga’a of northern BC fought for and won an initial concession from the Supreme Court in 1973 which laid the foundation for all aboriginal land claim treaties to follow. It’s taken nearly 30 years, but the Nisga’a finally have achieved a settlement with the Government of B.C.

Berger’s work fundamentally enhanced the idea of “self-government” for native Canadians. The whole notion of aboriginal entitlement swung on an earlier case when Berger successfuly defended two Nanaimo native men charged with hunting out of season by establishing their historic rights promised by B.C.’s first Governor, James Douglas.

Berger’s principles aren’t exclusively concerned with aboriginal issues. For instance, he once represented the Ironworkers Union a year after the tragic collapse of the Second Narrows Bridge. Designed as the second-longest cantilever span in Canada, the 4,180-ft. structure collapsed with 79 men on it, killing 18, during its construction. One man’s body was never found. It was revealed that an engineer had made a mathematical error; his supervisor didn’t notice the error. Both men died when the ironworks sent them crashing into Burrard Inlet 100 meters below.

Berger revealed a prejudice against the working class in the courts that was prevalent in the late 1950s. One year after the disastrous collapse, in spite of a legal strike vote, Berger defended the Ironworkers Union who were compelled to go back to work by an injunction granted the contractor. B.C. Supreme Court Judge A. M. Manson was notorious for anti-union bias and he was later rebuked in the Court of Appeal. Most contemporary British Columbians will find the details of the Ironworkers’ case outlined nearly unbelievable.

Other cases involve matters of personal rights and freedoms as befits someone who is an honourary director of the B.C. Civil Liberties Association. Berger has frequently struggled against conventions and rigid social mores through Courts of Appeal to the Supreme Court. His appetite for exhaustive legal scholarship is prodigious.

“I didn’t set out, at age twenty-four when I was called to the bar, to do these kinds of cases. But 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.”

Tom Berger’s reputation, however, is chiefly drawn from two celebrated achievements. Aware of Berger’s work on behalf of aboriginal peoples, Prime Minister Trudeau entrusted him to lead the McKenzie Valley Pipeline Inquiry that began in 1974. Berger traveled from the B.C./Alberta border in the south to the mouth of the Mackenzie River at the Arctic’s Beaufort Sea receiving the submissions of the various tribes of Dene and Inuit in their home communities. He also listened to the populations of larger centres like Yellowknife and Inuvik, as well as the corporate sponsors of the project, to determine whether a pipeline would be acceptable to all the people of the valley.

Berger’s report in 1977 recommended against the pipeline for reasons of aboriginal practices and environmental impacts.

It is hard today to understand just how groundbreaking it was in 1977 to rule against economic benefits in favour of the lives of native people and the environment. According to the dust jacket blurb, Berger’s published report, Northern Frontier, Northern Homeland is the best-selling report ever published by the Government of Canada.

Secondly, Berger famously resigned from the Supreme Court of B.C. where he had presided from 1972 until 1983. The issue involved the legal status of aboriginal Canadians during the run-up to the repatriated Constitution and Charter of Rights of Pierre Trudeau. While aboriginal rights were initially included in the draft Charter, they were then eliminated because of disagreement from some premiers. Berger, like many other Canadians, was outraged and spoke out in a speech which was quoted widely:

“Why were native rights affirmed in February (in the original document) and rejected in November? I think it is because the native peoples lie beyond the narrow political world of the prime minister and the premiers…It is, in fact, in our relations with the peoples from whom we took this land that we can discover the truth about ourselves and the society we have built. Do our brave words about the Third World carry conviction when we will not take a stand for the peoples of our own domestic Third World?”

The repercussions were soon swift: Censure from the Canadian Judicial Council. Censure from the P.M and from Supreme Court Chief Justice Bora Laskin. And rebukes from the usual suspects in legislatures and editorial rooms across the country who opposed Berger’s civil liberty values, insisting that judges must keep above current events and not engage in advocacy on their own.

Berger resigned from his cushy seat on the Bench and returned to the trenches. In the end, the brouhaha surrounding his intervention had the salutary effect Berger sought. Aboriginal rights were reinserted into the Charter at the last moment. It’s one of those courageous stands that can easily get lost in the footnotes of historians.

Tom Berger went on to many other battles by leading commissions of inquiry into the state of aboriginal people in Alaska, and for the World Bank in India. He took a few other difficult cases before senior courts on behalf of homosexuals in religious colleges, whistleblowers in government service, survivors of brainwashing experiments, and other persons fighting for justice.

Unlike, say, Berger’s 1992 book, A Long and Terrible Shadow, an elegant essay scanning the history of aboriginal treatment worldwide since Columbus, One Man’s Justice has detailed discussion of points of law and courtroom strategy. This is not to suggest it’s a dry read. Berger writes with spirit and self-deprecating wit in abundance. Lots of personal details amplify the legal positions. Some of Berger’s professional opponents who are still around will not like the frank sentences they receive within the text.

But the personal is secondary to a man on a mission. Lawyers can make history. We have few greater heroes in our midst. 1550549197--by Tom Shandel is one of British Columbia’s most respected and prolific documentary filmmakers. He lives in Cowichan Bay. (2003)

By Tom Shandel

[Spring 2003 BCBW]