I was saddened last month to hear of the passing of Thomas R
Berger, the pioneering lawyer, human rights advocate, politician and Royal
Commissioner who was famous for three things (although by no means only three):
first, bringing the Calder case to the Supreme Court, which established in
1973 that Aboriginal title can exist in Canadian law; second, leading the
MacKenzie Valley Pipeline Inquiry; and third, leading the protest in 1982 that
got the section 35 Aboriginal rights clause
put back in the Constitution.
I knew Tom Berger. I
was a friend of his daughter, Erin Berger, who was a classmate of mine at UBC.
We were both working in Ottawa the fall after graduation, she as an Assistant
to Ian Waddell and I as a Parliamentary Intern (in that capacity I worked for
the Liberal MP Pierre Deniger and the NDP MP Nelson Riis in addition to a host
of other activities.)
I had dinner with Tom and Erin one evening in Ottawa in
November 1981, when he was in town (not, as it turned out, just to visit his
daughter, but also to discuss what was happening with the constitutional
negotiations.) I noticed that he seemed to be uncharacteristically anxious to
finish eating and to hear what was on the news.
I vividly remember being in his hotel room, sitting down to
watch the National News with him and Erin and like a thunderbolt, the lead
story was his condemnation of the initial constitutional deal (which had left
out native rights at the request of certain premiers). Then-prime minister
Pierre Trudeau was saying to reporters that Berger, as a sitting judge, was “out
of line” to be “getting mixed up in politics”, and then the proverbial s**t hit the fan.
The following day, Berger had an op-ed in the Globe and
Mail, in which he took Canada’s elected leaders to task: “No words can deny what happened. The first
Canadians — a million people and more — have had their answer from Canada’s
statesmen. They cannot look to any of our governments to defend the idea that
they are entitled to a distinct and contemporary place in Canadian life. Under
the new constitution the first Canadians shall be the last. This is not the end
of the story. The native peoples have not come this far to turn back now.”
As a result, a complaint against him was filed with the
Canadian Judicial Council, and even the venerable Chief Justice of the Supreme
Court, Bora Laskin, criticized him for breaching the norms of judicial
impartiality. But he could not remain silent in the face of what he saw as a
fundamental injustice. As a result, Tom decided to resign from the Bench. He had sacrificed his judicial career, but in
his mind it was worth it.
And it probably was worth it. His
op-ed had galvanized the federal
NDP to insist on the inclusion of the aboriginal rights clause, which – along
with the activism of Indigenous leaders– made it clear to Trudeau that unless
section 35 was reinstated, he could not count on their support for the
patriation deal. The subsequent renegotiation brought native
rights (and women’s rights) back into the Constitution. Among its progeny was the
Tsilhqot’in
case, which represented the first declaration by the Supreme Court of
Aboriginal title for a First Nation in Canada. Its significance ranks on
par with the Supreme Court’s previous decisions in Calder and Delgamuukw.
I recall a conversation I had with him about the life of
David Lewis, the CCF-NDP firebrand who had just lost his battle with cancer,
and whose autobiography, which I had been reading, was appropriately titled The
Good Fight. Notwithstanding Tom’s
patient and pleasant demeanour, it might have made a fitting banner for him as
well. As it was, he eventually settled on an equally suitable title for his own
memoir: One Man’s Justice.
His was the very definition of a
life well lived.
