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One Man’s Justice, A Life in the Law (D&M $40)
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]
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]
Submitted on October 31, 2003 in By David.
