Thomas R. Berger

Thomas Rodney Berger QC OC OBC (March 23, 1933 – April 28, 2021) was a Canadian politician and jurist. He was briefly a member of the House of Commons of Canada in the early 1960s, entering provincial politics thereafter. He led the British Columbia New Democratic Party for most of 1969, prior to Dave Barrett. Berger was a justice of the Supreme Court of British Columbia from 1971 to 1983. In 1974, Berger became the royal commissioner of the Mackenzie Valley Pipeline Inquiry, which released its findings in 1977. After retiring from the bench, Berger continued to practise law and served in various public capacities. He was a member of the Order of Canada and the Order of British Columbia.

Thomas R. Berger
QC OC OBC
Judge of the Supreme Court of British Columbia
In office
1971–1983
Member of the Legislative Assembly of British Columbia for Vancouver-Burrard
In office
1966–1969
Member of the Canadian Parliament
for Vancouver—Burrard
In office
1962–1963
Preceded byJohn Russell Taylor
Succeeded byRon Basford
Personal details
Born
Thomas Rodney Berger

(1933-03-23)March 23, 1933
Victoria, British Columbia
DiedApril 28, 2021(2021-04-28) (aged 88)
Vancouver, British Columbia
NationalityCanadian
Political partyNew Democratic Party
EducationUniversity of British Columbia (BA, LLB)

Early life and education

Thomas Rodney Berger was born on March 23, 1933, in Victoria, British Columbia.[1] He was the son of Royal Canadian Mounted Police sergeant Theodor Berger and Nettie Elsie Perle, née McDonald.[2] Berger received a Bachelor of Arts and Bachelor of Laws from the University of British Columbia in 1955 and 1956, respectively.[2]

Career

Politics

Thomas R. Berger was elected at the age of 29 to the House of Commons in the 1962 election, representing the riding of Vancouver—Burrard for the New Democratic Party.[1] However, in the 1963 election, he was defeated by Liberal opponent Ron Basford.[1]

He was elected to the Legislative Assembly of British Columbia in the 1966 BC election.[1] Described as a "young man in a hurry",[3] Berger challenged long-time BC CCF/NDP leader Robert Strachan for the party leadership in 1967. Strachan defeated Berger but, sensing the winds of change, resigned in 1969. Berger defeated another young MLA, Dave Barrett, to win the leadership convention and was widely expected to lead the NDP to its first general election victory. Social Credit Premier W.A.C. Bennett called an early snap election and, instead of victory, Berger's NDP lost four seats. He quickly resigned and was succeeded by Dave Barrett.[4] Berger's last year as an MLA was 1969.[2]

Law

Berger was counsel to the Nisga'a in Calder v British Columbia (Attorney General), a case that inaugurated the concept of Aboriginal title in Canadian law.[1][5]

Appointed to the Supreme Court of British Columbia in 1971, he served on the bench until 1983.[2][6] Berger focused extensively on ensuring that industrial development on Aboriginal people's land resulted in benefits to those indigenous people. He may be best known for his work as the Royal Commissioner of the Mackenzie Valley Pipeline Inquiry which released its findings on May 9, 1977.[7][8]

In 1981 when Canada was debating the merits of a diversity of provisions in the proposed Canadian Charter of Rights and Freedoms, Berger wrote an open letter to The Globe and Mail, asserting that the rights of Aboriginal Canadians and women needed to be included in any proposed charter. In 1983 he was reprimanded by the Canadian Judicial Council for this activism.[9] Shortly thereafter he chose to resign as a judge and returned to practice as a lawyer.[10] Berger's expertise and reputation for thorough and independent assessment were immediately seen as an asset for indigenous communities. He was invited by the Inuit Circumpolar Conference to lead the Alaska Native Review Commission (1983–1985) which culminated in the publication of Village Journey (1985).[11][12]

In 1995, Thomas Berger was appointed Special Counsel to the Attorney General of British Columbia to inquire into allegations of sexual abuse at the Jericho Hill School for the Deaf. Berger was asked to investigate these allegations and produce a report. His recommendation for relief and compensation for those who were abused was accepted.[13][10][14]

Berger was appointed chair of the Vancouver Electoral Reform Commission in 2003.[15] The Commission recommended changing Vancouver's at-large system to a system of ward-level representation.[16][17] However, this recommendation was defeated in a referendum held on October 16, 2004.[18]

Appointed in 2005 as a conciliator to resolve the impasse between Canada, Nunavut, and Nunavut Tunngavik Incorporated in implementing the Nunavut Land Claims Agreement,[19] Berger completed "The Nunavut Project" in 2006. His report addresses the fundamental changes needed to implement Article 23 (Inuit Employment within Government) of the Nunavut Land Claims Agreement, including the need for a strong indigenous education system.[20]

In 2017, Berger was counsel to British Columbia in its challenge to Canada's approval of the Trans Mountain pipeline.[21]

Royal commissions

Berger chaired a royal commission on Family and Children's Law from 1973 to 1975. He was commissioner of the Mackenzie Valley Pipeline Inquiry from 1974 to 1977.[22][23] From 1979 to 1980, he chaired his third royal commission, on Indian and Inuit healthcare.[24] In 1978, Indian bands and organizations such as the Union of B.C. Chiefs, the Native Brotherhood and United Native Nations, engaged in intense lobbying for Indians to control delivery of health services in their own communities and for the repeal of restrictive service "guidelines introduced in September 1978, to correct abuses in health delivery, and to deal with the environmental health hazards of mercury and fluoride pollution affecting particular communities."[25] In September 1979, David Crombie, a liberal-minded reformer, as Minister of Health and Welfare under the Conservative government Prime Minister Joe Clark, issued a statement representing "current Federal Government practice and policy in the field of Indian health." Crombie declared that the "Federal Government is committed to joining with Indian representatives in a fundamental review of issues involved in Indian health when Indian representatives have developed their position, and the policy emerging from that review could supersede this policy".[25] Crombie appointed Doctor Gary Goldthorpe, as commissioner of the federal inquiry (known as the Goldthorpe Inquiry) into "alleged abuses in medical care delivery at Alert Bay, British Columbia".[25] In 1980 Justice Berger,[26] who headed his third royal commission dealing with Indian and Inuit healthcare, recommended to Crombie "that there be greater consultation with Indians and Inuit regarding the delivery of healthcare programs and that an annual sum of $950,000 was allocated for distribution by the National Indian Brotherhood to develop health consultation structures within the national Indian community."[25] Crombie's successor as Liberal Minister of Health and Welfare, Monique Begin, adopted Berger's recommendations, ushering in the beginning of a change in healthcare delivery.[24]

Honours

In 1989, he was made an officer of the Order of Canada.[27][28] In 2004, he received the Order of British Columbia.[29] As of 2006 he sat on the advisory council of the Order of Canada, which researches the merits of future members of the Order and advises the Governor General of Canada on new appointments. He was an honorary member of the Royal Military College of Canada, student #S153. In 2012, he was awarded the Queen Elizabeth II Diamond Jubilee Medal.[30][31]

Death and legacy

Berger died of cancer on April 28, 2021, in Vancouver.[1]

Edgar Z. Friedenberg, writing in The New York Review of Books in 1982, called Berger "perhaps the most effective and certainly the most respectable champion of the aboriginal peoples of Canada".[23][2] Berger argued that the reconciliation between Indigenous and non-Indigenous peoples could be facilitated by the Canadian judicial system. In her discussion of Berger's life, Swayze asserts that Berger "believes, and believes passionately, in the integrity of Canada’s system of equitable justice and its attendant jurisprudence".[32] Throughout his career, Berger dedicated his life to law and to politics. He is recognized for his work on the Mackenzie Valley Pipeline Inquiry and the subsequent publication of The Berger Report. As Commissioner, Berger recommended that, "on environmental grounds, no pipeline be built and no energy corridor be established across the Northern Yukon"[33] and that any pipeline construction be postponed until native claims could be settled. Despite his belief in the judicial system, Berger acknowledged that there were certain issues that could be dealt with outside of the courts. Swayze argues that "[t]he philosophy inherent in all thirteen" of the reports of British Columbia's Royal Commission on Family and Children's Law, on which Berger served as a commissioner, "is that legal sanctions should, in many cases, be a last resort, and to this end recommendations focused on the effective use of human rather than legislated solutions."[34]

Publications

Footnotes
  1. Mackie, John (April 8, 2021). "Obituary: Former B.C. NDP leader and legal legend Tom Berger dies at 88". Vancouver Sun. Archived from the original on April 29, 2021. Retrieved April 30, 2021.
  2. "Berger, Thomas R(odney) 1933–". Contemporary Authors. Archived from the original on October 20, 2020. Retrieved April 30, 2021.
  3. Isitt, Benjamin (2011). Militant Minority: British Columbia Workers and the Rise of a New Left, 1948–1972. University of Toronto Press. p. 178. ISBN 978-1-4426-4194-5.
  4. Johnson, William (July 6, 1983). "Two heroic men in a conflict". The Globe and Mail. Toronto: Bell Globemedia. p. P8. ISSN 0319-0714. ProQuest 386473556.
  5. Calder v British Columbia (Attorney General), [1973] SCR 313 Archived March 25, 2021, at the Wayback Machine
  6. Mooney, Harrison. "Thomas Berger has long history of arguing for Aboriginal rights". Vancouver Sun. Archived from the original on November 17, 2019. Retrieved April 30, 2021.
  7. Presenter: Paul Kennedy (December 8, 2011). "Mr. Justice Berger". Ideas. CBC Radio. CBC Radio 1. Archived from the original on January 23, 2021. Retrieved April 30, 2021.
  8. Allan McFee (May 9, 1977). "The Berger Report is released". As It Happens. CBC Radio. CBC Radio 1. Archived from the original on August 20, 2018. Retrieved April 30, 2021.
  9. Webber, Jeremy (1984). "The Limits to Judges' Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger" (PDF). McGill Law Journal. 29 (3).
  10. Smith, Denis. "Thomas Rodney Berger". The Canadian Encyclopedia. Historica Canada. Archived from the original on August 26, 2019. Retrieved August 26, 2019.
  11. Baumgartner, Mark (September 19, 1985). "Tables have turned on Alaska's natives. Villagers watch money from settlement dwindle; land could be next". The Christian Science Monitor. ISSN 0882-7729. Archived from the original on January 17, 2021. Retrieved April 30, 2021.
  12. Case, David S. (1987). "Listen to the Canary: A Reply to Professor Branson". Alaska Law Review. 4: 209–221. Archived from the original on October 29, 2020. Retrieved April 30, 2021.
  13. Wilt, James (August 11, 2017). "Indigenous Law Legend Thomas Berger To Lead B.C. Into Trans Mountain Pipeline Battle". The Narwhal. Archived from the original on April 29, 2021. Retrieved April 30, 2021.
  14. Rumley v British Columbia, 2001 SCC 69 Archived March 6, 2012, at the Wayback Machine at paras 2–10.
  15. Smith, Charlie (August 26, 2010). "Sex-trade advocates and relatives of murdered women lay groundwork for public inquiry". The Georgia Straight. Archived from the original on August 29, 2010. Retrieved April 30, 2021.
  16. Veldhuis, Niels; Clemens, Jason (August 18, 2004). "Ward system will lead to more spending and debt, two economists warn". Vancouver Sun. p. A15. ISSN 0832-1299. ProQuest 242320479.
  17. Tuominen, Tarja (June 14, 2004). "Report of the 2004 Vancouver Electoral Reform Commission". City of Vancouver. Retrieved May 1, 2021.
  18. Coulson, Marg (November 17, 2004). "Vancouver Electoral Reform Commission Recommendations". City of Vancouver. Retrieved May 1, 2021.
  19. Gallagher-Mackay, Kelly (2007). "Conciliator's Final Report: "The Nunavut Project"". Canadian Journal of Education / Revue canadienne de l'éducation. 30 (4): 1093. doi:10.2307/20466680. JSTOR 20466680. In 2005, the three parties agreed to the appointment of Thomas Berger as conciliator …
  20. Bell, Jim (March 31, 2006). "Berger urges big, bold fix for Inuit education". Nunatsiaq News. Archived from the original on December 30, 2018. Retrieved April 30, 2021.
  21. "B.C. hires outside counsel to begin legal challenge of Trans Mountain pipeline project". CBC News. August 10, 2017. Archived from the original on March 22, 2021. Retrieved April 29, 2021.
  22. RBSC nd.
  23. Friedenberg, Edgar Z. (November 4, 1982). "Un-Canadian Activities". The New York Review of Books. ISSN 0028-7504. Archived from the original on January 21, 2021. Retrieved April 30, 2021.
  24. Berger 2002, p. 144.
  25. Castellano 1981, p. 114.
  26. Berger 1980.
  27. Sauvé, Jeanne (October 23, 1989). "The Honourable Thomas R. Berger". Ottawa: Governor General of Canada. Archived from the original on April 30, 2021. Retrieved April 30, 2021.
  28. Sauvé, Jeanne (December 23, 1989). "The Order of Canada". Canada Gazette. Ottawa: Supply and Services Canada. 123 (51): 5388. Archived from the original on April 30, 2021. Retrieved April 30, 2021.
  29. Bains, Meera (April 29, 2021). "Thomas Berger, lawyer who fought for groundbreaking Indigenous land claims, dead at 88". CBC News. Archived from the original on April 30, 2021. Retrieved April 29, 2021.
  30. "The Honourable Thomas R. Berger". Governor General of Canada. Archived from the original on April 30, 2021. Retrieved April 30, 2021.
  31. "Queen Elizabeth II Diamond Jubilee Medal". Archived from the original on December 4, 2012. Retrieved June 19, 2012.
  32. Swayze 1987, p. 8.
  33. Lucas, Alastair R.; Tilleman, William A.; Hughes, Elaine L. (1998). Environmental Law and Policy (2nd ed.). Emond Montgomery. p. 195. ISBN 1-55239-012-8. OCLC 39515492.
  34. Swayze 1987, p. 133.
  35. Penton, M. James (March 1983). "Review of Fragile Freedoms". Studies in Religion/Sciences Religieuses. 12 (1): 106–107. doi:10.1177/000842988301200128. ISSN 0008-4298. S2CID 152098799.
  36. Brun, Henri (1982). "Review of Fragile Freedoms". Les Cahiers de droit (in French). 23 (1): 251. doi:10.7202/042495ar. ISSN 0007-974X.
  37. Knopff, Rainer (December 1982). "Review of Fragile Freedoms". Canadian Journal of Political Science. 15 (4): 826–827. doi:10.1017/S000842390005215X. ISSN 0008-4239. S2CID 154358721.
  38. Miles, Bill (February 2, 1986). "Review of Village Journey". Los Angeles Times. Retrieved April 30, 2021.

References
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