Hard choices. The work of any judge. The hallmark of the examined life, the one worth living, worth emulating. The title of Carol Swayze’s biography of Thomas Berger: Hard Choices. Tom Berger was counsel for the plaintiffs in Calder v. Attorney-General of British Columbia (1973), in which the Supreme Court first recognized the place of Aboriginal title in Canadian law. The case laid the foundation for virtually all Aboriginal land claim treaties that followed. Berger represented the Ironworkers Union in a strike a year after an engineering error led to the deadly collapse of the Second Narrows Bridge.
He headed three Royal Commissions, and was appointed Deputy Chairman of the first Independent Review commissioned by the World Bank, to examine the environmental and resettlement impact in the Sardar Sarovar Projects in western India. His report, which revealed that the Projects had failed to take adequate measures to protect tribal peoples and the environment, convinced the World Bank to withdraw their funding.
Berger acted as Special Counsel to the Attorney General of BC in the inquiry into sexual abuse at the Jericho Hill School for the Deaf. He is lead counsel for the Province of BC in its suit against the tobacco industry, and for seventeen mentally infirm women who are suing the Province for unlawful sterilization under BC’s now-repealed Sexual Sterilization Act.
Berger’s reputation was sealed by two hard choices in particular. Firstly, because of his work on behalf of Aboriginal peoples, then Prime Minister Pierre Trudeau asked Berger to lead the Mackenzie Valley Pipeline Inquiry (1974-77). On Berger’s recommendations, the Government of Canada rejected the Arctic Gas pipeline proposal, established wilderness parks in the Northern Yukon to protect the Porcupine caribou herd and agreed to a moratorium on major development in the region and the settlement of Aboriginal land claims. In 1977, it was unheard of to rule against economic benefit in favour of Aboriginal peoples and the environment, and the outcome is still considered a landmark victory today.
Secondly, Berger joined the Supreme Court of BC in 1971, the youngest judge appointed to that Court in the 20th century. And in 1983, he resigned his seat over the reversal of the decision to include Aboriginal rights in Trudeau’s repatriated Constitution:
Why were native rights affirmed in February 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?
Berger says now, “Look, in this business, you win some, you lose some. You try not to become invested emotionally, but to some extent it is unavoidable. When you lose a tough case and your clients are deserving clients, yes you’re down and you can be down for a week or two. Perhaps you appeal, perhaps you’ve lost in the Supreme Court of Canada and there’s nothing left to be done. But you get over it, and swiftly.” Sometimes, though, even when you lose, you win. Berger’s stand had the effect of drawing public attention to the legal status of Aboriginal Canadians, and at the last moment, Aboriginal rights were reinserted in the Constitution.
Berger considered teaching and journalism before choosing law, and he made his choice without anticipating the kinds of cases he would take on during his career. “I was animated by a belief,” he writes in his memoirs, One Man’s Justice, “and now it is a profound belief—that the law as enforced in the courts can move us incrementally towards a just society.”
Aboriginal law wasn’t taught at UBC—or anywhere else—in the early '50s, so his first cases involving Aboriginal rights and title constituted his first exposure to the issues. After resigning from the bench, Berger taught part time at UBC, leading classes in constitutional law and civil procedure and working with Doug Sanders, Michael Jackson, Robin Elliot and Joost Blom to “fill that gap.” “I think [UBC has] been for some time now the leading law school in the country in the field of Aboriginal law, and I think UBC has had the largest number of Aboriginal men and women who have graduated from law school.”
Berger holds honourary degrees from 13 universities, received the Order of Canada in 1990, was granted the Freedom of the City of Vancouver in 1992, and in 2004 was awarded the Order of British Columbia. He is the author of several books, including Northern Frontier, Northern Homeland, his account of the Mackenzie Valley Pipeline Commission and the best-selling book ever published by the Government of Canada. He served as an MP for the New Democratic Party in 1962-63, and was leader of the provincial NDP before Dave Barrett won the spot and became Premier. “I’ve never become jaded because I’ve always taken time out to do other things,” he says. “Each time I’ve returned to the practice of law, I’ve always thought to myself, this is where I belong.”
Together with his daughter Erin, Berger now practises under the auspices of Berger & Company. The firm specializes in personal injury, medical malpractice, employment law and of course Aboriginal land claims. “I graduated 48 years ago,” Berger says, “and I still look forward to coming down to the office and discussing new cases. I’ve been lucky.”
Lucky—or willing to make the hard choices.
Written by Diane Haynes and originally published in the UBC Law Alumni Magazine, Fall 2005. A PDF of the full issue can be found here.