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.
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