Thomas R. Berger

Thomas Rodney Berger, QC OC OBC (born March 23, 1933) is a Canadian politician and jurist of Swedish descent. Berger was the leader of the British Columbia New Democratic Party for most of 1969, prior to Dave Barrett. Justice Berger may be best known for his work as the Royal Commissioner of the Mackenzie Valley Pipeline Inquiry which released its findings in 1977.

Background

Born in Victoria, British Columbia he is the son of Royal Canadian Mounted Police (RCMP) sergeant Theodor Berger, and, his wife, Perle, née McDonald. Theodor Berger was the son of Ivar Theodor Berger (1861–1937), a police judge in Gothenburg, Sweden, and his wife, née Baroness Hedvig Taube af Odenkat, a member of the Swedish nobility.

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. However, in the 1963 election, he was defeated by Liberal opponent Ron Basford.

He was elected to the Legislative Assembly of British Columbia in the 1966 BC election. Described as a "Young Turk" and "young man in a hurry", 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 ever 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.^[1]

Judicial career

Appointed to the Supreme Court of British Columbia in 1972, he served on the bench until 1983. 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 9 May 1977.^[2][3]

In 1981 when Canada was debating the merits of a diversity of provisions in the proposed Charter of Rights and Freedoms, Berger wrote an open letter to the Globe and Mail newspaper 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, even though his comments "did not related to any existing statute or court decision". Shortly thereafter he chose to resign as a judge and returned to practice as a lawyer.^[4]

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)".

In 1995, Thomas Berger was appointed Special Counsel to the Attorney General of BC to inquire into allegations of sexual abuse at the Jericho Hill School for the Deaf in British Columbia, Berger was asked to investigate these allegations and produce a report. This site, http://www.survivingthepast.ca/gillsterinc/schools/Law_Courts.htm#4-1_History.htm offers a detailed record of the case and breaks it down into helpful subtopics, such as the history of this school and these allegations, the nature of the alleged abuse, attempts to heal from this trauma, and the legal proceedings. His recommendation for relief and compensation for those who were abused was accepted.^[5]

Berger was appointed chair of the Vancouver Election Commission in 2003, and led several public meetings on electoral reform in the early months of 2004. The Commission recommended changing Vancouver's at-large system of representation with individual wards; however, this recommendation was defeated in a referendum held on October 16, 2004.

Appointed in 2005 as Conciliator to resolve the impasse of the Government of Canada, Government of Nunavut and Nunavut Tunngavik Incorporated in reaching a common way forward for the Nunavut Land Claims Implementation Contract, 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.

Royal Commissions

Justice Berger chaired a Royal Commission on Family and Children's Law from 1973 to 1975. He was commissioner of the Mackenzie Valley Pipeline from 1974 to 1977.^[6] From 1979 to 1980 he chaired his third Royal Commission on Indian and Inuit healthcare.^[7] 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."^[8] 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".^[8] 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."^[8][9] In 1980 Justice Berger,^[10] 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."^[8] Crombie's successor as Liberal Minister of Health and Welfare, Monique Begin, adopted Berger's recommendations, ushering in the beginning of a change in the way in which health delivery.^[7]

Honours

In 1989, he was made an Officer of the Order of Canada.^[11][12] He is a member of the Order of British Columbia. As of 2006 he sits 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 is an honorary member of the Royal Military College of Canada, student #S153. In 2012, he was awarded the Queen Elizabeth II Diamond Jubilee Medal^[13]

Significance and impact

Intellectual legacy regarding indigenous rights

Thomas Berger would contend that the reconciliation between Indigenous and non-Indigenous peoples could be facilitated by the Canadian judicial system. In his 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.” Throughout his career, Berger dedicated his life to law and to politics. He is perhaps most notably 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” 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. For instance, as Commissioner for the Royal Commission on Family Law, he stated: “The philosophy inherent in all thirteen of the commission’s reports 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.”

One of Berger’s intellectual contributions is the idea that Canada’s relationship with Indigenous people can serve to strengthen the country instead of weakening it. For Berger, Canada is divided into two parts: Indigenous nations and everyone else. In his speech entitled, “My Idea of Canada,” he states: “I think diversity has become the essence of the Canadian experience and it is our strength. It’s not a weakness. We’re not addicted to bogus patriotism. We believe in diversity. We believe in being a good citizen of the world.” The plurality of the Canadian nation, Berger notes, sometimes makes Canada a difficult country to govern, however, he suggests that Canada “could be the prototype nation state of the 21st century in which a citizen’s identity does not have to be authenticated by a spurious nationalism.” In Fragile Freedoms, Berger calls for attention to be paid not only to the problems facing the developing world, but also to those nations within Canada that are suffering. Berger states that he believes “in the uses of democratic institutions …[as] the means to the dispersal of political and economic power. [Democratic institutions] will be strengthened by the Constitution and Charter which offer those who are under attack a place to stand, ground to defend, and the means for others to come to their aid.” Berger’s intellectual treatment of the legal system and its applications have enhanced the concepts of equality and rights for Indigenous people under Canadian law.

Footnotes

Citations

References

• Berger, Thomas R. (1980), Report of Advisory Commission on Indian and Inuit Health Consultation 
• Berger, Thomas R. Fragile freedoms: human rights and dissent in Canada. Toronto: Clarke, Irwin, 1982.
• Berger, Thomas R. “My Idea of Canada.” Speech presented to 2005 Annual Meeting of Citizens for Public Justice, Vancouver: June 2, 2005.
• Berger, Thomas R. Northern frontier, northern homeland : the report of the Mackenzie Valley Pipeline Inquiry. Vancouver: Douglas & McIntyre, 1988.
• Berger, Thomas R. (2002), One Man's Justice: A Life in the Law, Vancouver, BC: Douglas & McIntyre 
• Castellano, Marlene Brant (1981), Indian participation in health policy development: implications for adult education (PDF), Peterborough, Ontario: Trent University 
• Government of British Columbia. Reports [of the] Royal Commission on Family and Children's Law. Toronto: Micromedia Ltd., [19--].
• Swayze, Carolyn. Hard choices: a life of Tom Berger. Vancouver: Douglas & McIntyre, 1987.
• "Berger, Thomas R", RBSC Archives 

External links

• The Berger Pipeline Inquiry
• The Nunavut Project
• 1974 The Berger Inquiry NWT Historical Timeline, Prince of Wales Northern Heritage Centre
• Concordia University Honorary Doctorate Citation, June 1994, Concordia University Records Management and Archives