When Justice Thomas Berger took his historic Mackenzie Valley Pipeline Inquiry to the vast stretches of the Canadian North in the mid-1970s, the analogy often used was to the building of Canada's first railway in the late 1800s.
What if a Berger-type inquiry had examined the route of the railway and its impact on the people who inhabited the West back then — the Cree, the Blackfoot, the Métis? Berger conducted himself as if the Mackenzie Valley Pipeline Inquiry were a latter-day examination of something as momentous as the building of Canada's railway.
"There is a direct parallel between what happened on the Prairies after 1869 and the situation in the Northwest Territories today," he said in his 1977 report.
"Then, as now, the native people were faced with a vast complex of whites on the frontier," Berger said. "Then, as now, the basic provisions for native land rights had not been agreed. Then, as now, a large-scale development project was in its initial stages, and a major reordering of the constitutional state of the area was in the making."
Federal cabinet OKs pipeline
On March 10, 2011, the federal cabinet signed off on the Mackenzie Valley pipeline, allowing the National Energy Board to grant final approval to the $16.2-billion project to carry natural gas from the Beaufort Sea 1,200 kilometres to the Alberta border and link with southern markets.
It's a lot of money, a long way to go and it's taken a long time. The concept of a northern gas pipeline began in the early 1970s and led to Berger's famous royal commission, a massive study examining not only technical nuts and bolts but also the social consequences to the people who live in the valley.
Tell it to the judge
On March 3, 1976, at a community hearing in what was then called Holman in the Northwest Territories, an old Inuk named Charlie Kitologitak told Judge Berger a story about Migok, the seal-snatcher.
The interpreter translated as Charlie spoke in the dialect of what is now called Ulukhaktok:
"Migok was a nasty villain who waited for returning seal hunters and always seized the biggest seal for himself, usually the big male seal. Well, one day a hunter saw Migok approaching from a distance and he cut a testicle from the seal and put it in his mouth.
" 'Look, I have one of my testicles in my mouth,' the man told Migok. 'Why don't you cut yours and put it in your mouth, too?' "
Migok evidently was as stupid as he was nasty and he did precisely that.
"So, that's the way he got rid of that seal-snatcher," said old Charlie Kitologitak.
"I guess that's a story with a happy ending," said Judge Berger.
From The Past and Future Land, by Martin O'Malley
His 1977 report called for a 10-year moratorium on construction of a gas pipeline along the Mackenzie River Valley. Berger wanted everyone to take a deep breath so those for and against the project — the largest in the history of free enterprise, it was said in the 1970s — could attend to land claims and environmental and social concerns.
Over a 25-year span, there were intense negotiations between oil and gas companies and aboriginal groups. By June 2003, the Aboriginal Pipeline Group and TransCanada Corp. signed an agreement giving the aboriginals of the Northwest Territories one-third ownership of the pipeline project.
Berger inquiry begins
The inquiry began on March 3, 1975, with a formal hearing in Yellowknife. The formal hearings were for planners and engineers, captains of industry and various policy wonks.
What captured the imagination of the entire country were the community hearings along the valley as well as in the Yukon and north across the Amundsen Gulf to Sachs Harbour and Holman Island. There were hearings in tents, at fish camps, in places such as Edzo, Lac la Martre, Wrigley, Fort Norman, Fort Good Hope, Nahanni Butte, Old Crow — and beyond. Many could be reached only by float plane or freighter canoe.
Berger then took the inquiry across southern Canada all the way to the Maritimes. Critics thought he took liberties with the commission's terms of reference, but he regarded his inquiry as a "travelling teach-in," a consciousness-raising exercise. He considered the process as important as any hard recommendations.
And he kept his focus on the historical perspective, or what came to be known as "the railway analogy."
"The historical record shows that if the land claims of the Métis had been settled, there would have been no Northwest Rebellion," Berger said in his report. "It is equally plain that the opening of the West to white settlers made it difficult, if not impossible, for the Government of Canada to recognize the land claims of the native people, who had lived on the plains before the coming of the railway."
Berger describes how the Riel Rebellion of 1885 was the result of land grievances and a loss of a way of life. In March 1885, the Métis rose in rebellion and were defeated. The railway moved on, opening the West, driving many Métis to the United States, some to Indian reserves, and some as far away as the Mackenzie Valley.
A Berger report of the 1800s?
What useful riches could have been found if a Berger-type inquiry had examined Canada in the late-1800s? The railway itself might have taken a different route if planners heeded native wisdom that suggested a better capital for Manitoba would have been Selkirk instead of Winnipeg because of floods that regularly inundated habitations at the confluence of the Red and Assiniboine rivers.
Thomas Rodney Berger
Thomas Rodney Berger was born on March 23, 1933, in Victoria, B.C., the son of an RCMP officer.
He became an MP at the age of 29, winning a seat for the New Democratic Party in the 1962 federal election. He won a seat for the NDP in the 1966 B.C. provincial election, briefly lead the provincial NDP, and quit politics 1969 after his party lost to Social Credit Premier W.A.C. Bennett.
Berger was appointed to the B.C. Supreme Court in 1971 and served on the bench until 1983. During that time, he conducted the Mackenzie Valley Pipeline Inquiry, reporting to the federal government in May 1977.
In 2011, he will represent the Manitoba Métis as a lawyer before the Supreme Court of Canada in a case reaching back to the late 1800s.
Berger and his wife visited the valley the summer before his inquiry. They visited people in their homes, sipped tea and ate with them. He liked the way people could have a splendid social afternoon sitting on a riverbank watching the water without saying a word, captured in the phrase, "Don't speak unless you can improve the silence."
One of a remarkable band of broadcasters for the CBC's Northern Services at the time was a jovial fellow named Abe Okpik, who styled himself as a proud Eskimo. Among his duties in Canada's North was to assign names for people identified only by numbers.
One day in Yellowknife in the mid-1970s, Okpik explained how he had visited the airport and heard three people use the word "Inuit." With exquisite timing, as he bent to tighten his bootlaces, he mused aloud: "The anthropologists must be early this year."
On to the Supreme Court
This year, Berger, now 77, will appear before the Supreme Court of Canada as a lawyer representing the Métis in grievances that go back more than a century.
The Métis claim is based on the promise made in 1870 by John A. Macdonald's government to the provisional government at Red River headed by Louis Riel. The promise was that the 7,000 children of the Métis (a majority of a population of 12,000 at the time) would receive 1.4 million acres of land in the new province of Manitoba.
The Métis will argue that Canada had a fiduciary obligation — entrenched in the Manitoba Act of 1870 — to distribute the land promptly and fairly, so the Métis and their children would constitute a thriving community in the new province. Because of federal delays, many children never received any land. Berger will argue that there is no statute of limitations on unconstitutional action by government.
It could be a splendid bookend to an illustrious legal career.