Northerners remember Thomas Berger, a champion of Indigenous rights

Judge Thomas Berger took a "revolutionary" approach to a proposed pipeline through the Mackenzie Valley and is known for his influence on Indigenous rights, Canadian law, and the recognition that Dene, Inuit and Métis should have their say in what happens on their land.

Former lawyer, NDP MP, and judge influenced a broader recognition of Indigenous rights

Thomas Berger at a Mackenzie Valley Pipeline Inquiry community hearing in Ulukhaktok, in an archived photo. (NWT Archives/Native Communications Society fonds - Native Press photograph collection/N-2018-010: 2909)

Judge Thomas Berger transformed Canadian law and Indigenous title and treaty rights, and raised expectations for consultation over proposed development on Indigenous land, say northern Indigenous leaders.

The former B.C. Supreme Court judge, NDP politician and lawyer died Wednesday, aged 88.

Former N.W.T. Premier Stephen Kakfwi said on Thursday that Berger's passing "leaves a big hole in a lot of us because we knew him personally."

In the 1960s, Berger argued for the Nisga'a Nation in the Calder case, leading to a 1973 decision by the Supreme Court of Canada that recognized Indigenous title to land existed prior to colonization, and Nisga'a land title had never been extinguished. 

Berger was famous for this case, and for an inquiry he led in the 1970s, known as the Berger Inquiry, which stopped a proposed pipeline through Indigenous communities up and down the Mackenzie Valley at a time where prioritizing Indigenous rights over economic development was rare.

Former N.W.T. Premier Jim Antoine of Líídlįį Kúę says the inquiry changed the landscape of Indigenous rights "drastically, tremendously, for all of us here in the North, as well as other parts of Canada.

"It really advanced the struggles that we were going through as Indigenous peoples in this country," Antoine said.

Berger and Délı̨nę Chief George Kodakin in Ottawa during preliminary pipeline hearings. (NWT Archives/Native Communications Society fonds - Native Press photograph collection/N-2018-010: 2009)

'It was revolutionary'

The inquiry was originally slated to take 12 months, but Berger saw it as an opportunity for Canada to hear the voices of Dene and their plans for their people and land, Kakfwi said. 

In the end, it lasted two and a half years. 

"He took it to a fundamental question, is it going to be good for the Northwest Territories? And do people want a pipeline down the valley — their valley? We had all these plans and a pipeline was just not in there," said Kakfwi. 

When Berger was appointed, he immediately sought local advice on how to go about the inquiry, including from former Délı̨nę Chief George Kodakin. 

Berger sent his chief legal counsel to live in Délı̨nę for six months and travelled there himself two or three times to familiarize himself with the community before the inquiry began.

Over the course of its extensive travels, the inquiry heard from Dene on many matters of self-determination, from governance to education, land and wildlife.

Kodakin talks with Berger in Délı̨nę at a community hearing of the inquiry. (NWT Archives/Native Communications Society fonds - Native Press photograph collection/N-2018-010: 2827)

"We were talking about being self-determining, which was almost unheard of," said Kakfwi. "That was not terminology used anywhere else in Canada. And we're talking about being a nation, our own land, our own culture, our own history and our right to determine our history."

Berger's report compiled what he heard from almost 1,000 northerners. It called for a 10-year ban on oil and gas development in the Mackenzie Valley with an eye toward settling land claims. 

"It was revolutionary, you know, it changed Canada overnight," said Kakfwi.

Challenging Canada over extinguishment of rights

Former Dene Nation Chief Bill Erasmus said Berger raised the profile of land rights in the North.

"Very few people in the South knew what was happening in the North," said Erasmus.

They did not recognize that Dene were being relocated off their lands into communities and that this relationship had to be "dealt with adequately," he said.

"At the end of the day," Erasmus said, "he recommended that a pipeline not go through the North until our rights were dealt with."

A Mackenzie Valley Pipeline Inquiry community hearing in Tulita. The inquiry addressed a proposed pipeline through Indigenous communities up and down the Mackenzie Valley at a time where prioritizing Indigenous rights over economic development was rare. (NWT Archives/Native Communications Society fonds - Native Press photograph collection/N-2018-010: 2816)

When Berger argued for the Nisga'a during the Calder Case, it was still Canada's position that Indigenous title to land had been extinguished through treaty and that Indigenous people should have to prove their rights existed. 

Dene leaders argued against the construction of the Mackenzie Valley Gas Pipeline, said Erasmus.

In 1973, François Paulette and more than a dozen chiefs from the Mackenzie Valley filed for legal standing to show that Dene have legal title over their land.

Paulette and chiefs across the Mackenzie Valley challenged the Canadian government to recognize that when the Dene signed Treaty 8 and Treaty 11, they had not surrendered their title to over 1,165,494 square kilometres of land in the N.W.T. 

In the Supreme Court of the Northwest Territories, Justice William Morrow ruled in favour of the Dene. Though the ruling was overturned, Morrow's findings on Indigenous rights were upheld.

On the heels of the Calder case and Paulette caveat, then-Prime Minister Pierre Trudeau tasked Justice Thomas Berger to look into the impacts of a proposed pipeline. 

Hundreds testify before Berger

45 years ago
Across the Yukon and Northwest Territories, hundreds of residents give the Berger Inquiry their opinions. 3:56

'Set the stage'

Berger's impact on Indigenous rights continues to present-day. 

Nunavut Premier Joe Savikataaq said in a news release Thursday that Berger's 2006 Nunavut Report set the standard for consultation over development on Indigenous land, and "set the stage for the conclusion of land claim agreements in the N.W.T. and Nunavut."

Savikataaq said it was "critical in outlining the path forward for meaningful Nunavut Inuit participation in our territory and society."

Qikiqtani Inuit Association said Berger's report focused on Inuit employment in the government and recommended a bilingual education system from K-12 to address inequities in Inuit employment.

Former MP Ethel Blondin-Andrew, who is from Tulita, said she remembers Berger as "very principled, very stable, very intelligent [and] well-read" — and importantly, a great listener.

"He taught a lot of people the value of what you get when you listen," she said. "He liked to get all the information and not just jump out and respond, but to gather it, to mull it over."