ABOUT THOMAS R. BERGER
“As a Judge and a Royal Commissioner, Tom Berger provided a larger landscape for understanding how recognition of the rights of Indigenous peoples was indelibly Ied to a Canadian vision of a Just Society.”
Professor Michael Jackson
Faculty of Law,
University of BC
Thomas Berger was born in Victoria, B.C. His father emigrated from Sweden and his mother’s family emigrated from Ireland. Tom’s father was an R.C.M.P. officer and the young family of six moved around many small towns in British Columbia including Hazelton and Sea Island.
Tom earned his Bachelor of Laws from the University of British Columbia and received twenty Honorary Degrees from universities across Canada. Tom was appointed a judge of the Supreme Court of British Columbia at the age of 38 in 1972 – the youngest judge appointed in a century – but resigned from the judiciary in 1983 after speaking out to protect the rights of Indigenous peoples in the Constitution. Tom’s most cherished honour, however, was the name bestowed on him in 1997 by the Nishga’a Nation, “Halaydin Xhlamwit”, which means Spirit of the Mountain.
Tom always had a positive outlook and great confidence in pursuing new and controversial legal arguments. This was bolstered by an unparalleled work ethic. He truly enjoyed working and that is why he kept practicing law until just before his 88th birthday.
At his peak, Tom would work every day but take the time to go for a walk, read a book or have a meal and a glass of wine at a restaurant with his wife Bev.
Bev’s support was fundamental to Tom being able to work long hours and pursue his legal dreams. She worked as an elementary school teacher while he completed law school at U.B.C.
Tom read Shakespeare’s plays throughout his life for enjoyment and inspiration, perceiving in the Bard’s texts timeless observations of the human condition. He supported Vancouver’s Shakespearean company, Bard on the Beach for many years. Tom played tennis for 40 years with a dedicated group of friends at the Jericho Hill Tennis Club.
At the beginning, Tom started his career as a young lawyer doing criminal law, labour law, and general civil litigation. He won his first murder case as defence counsel in 1958.
In 1958, he also defended the Ironworkers union after the collapse of the Second Narrows Bridge (Ironworkers Memorial Bridge) in the union members’ refusal to return to work until the bridge was safe. Justice A.B. Manson threatened to send the Ironworkers to jail for contempt and even threatened Tom with contempt. Tom prevailed in the end, though: Justice Mason’s findings adverse to the Ironworkers were thrown out by the Court of Appeal in 1959.
Tom served as N.D.P. Member of Parliament in Vancouver-Burrard in 1961/62. He also served as N.D.P. M.L.A. for Vancouver-Burrard in the Provincial legislature from 1966-1969. He led the N.D.P. in the provincial election of 1969. He lost the election and his own seat.
Securing Justice for Indigenous Peoples
After working for Tom Hurley and Maisie Hurley, in their offices at the intersection of Hastings and Cambie, and at their encouragement and urging, Tom took up the cause of First Nations and Metis peoples’ rights. Tom represented Clifford White and David Bob, First Nations men who were found guilty of hunting out of season. Tom was successful on appeal in establishing that they had a treaty right to hunt, pursuant to a treaty that had gone unrecognized for a century.
Tom was then asked by the Nishga’a Nation to sue the province to establish their aboriginal title to the Nass Valley in a case that became known as Calder. In a 1973 decision that laid the foundation for all subsequent aboriginal title claims in Canada, the Supreme Court of Canada held that aboriginal title was a concept recognized at common law.
As a result of Calder, Prime Minister Pierre Trudeau’s government changed its policy and recognized its obligation to negotiate modern treaties with First Nations.
In the 1990s, Tom obtained a judgment of $150 million for his clients in the Blueberry River case.
In the 2000s, Tom successfully represented the Manitoba Metis Federation, in its quest to enforce the promise made by John A. Macdonald in 1871 to provide land for the children of the Metis. In 2013, the Supreme Court of Canada declared that the Government of Canada had failed to fulfill MacDonald’s promise to the Metis. The Court’s declaration set the stage for negotiations between the Metis and the Government of Canada, to right the historic wrong.
In 2017, Tom once again led clients to victory in the Supreme Court of Canada, this time by in upholding the determination made by an independent commission in the Yukon to set aside 70% of the Peel River watershed, an area as big as Scotland, as wilderness and protected land.
Royal Commissions: Historic changes in conducting inquiries and landmark recommendations
Tom was called upon by numerous governments to conduct Royal Commissions and other Commissions of Inquiry. In 1973, he chaired the B.C. Royal Commission on Family and Children’s law, which recommended health care improvements for remote and indigenous communities.
In 1974, Tom was appointed by the Government of Canada to conduct the Mackenzie Valley Pipeline Inquiry to examine the social, economic and environmental consequences of constructing a natural gas pipeline from Prudhoe Bay, across northern Yukon, and to the Mackenzie Delta to carry natural gas to metropolitan centres in Canada and the U.S. Tom conducted hearings in 35 Dene and Inuvaluit communities in B.C. and the Northwest Territories. The way the hearings were conducted was revolutionary, in that they provided for simultaneous translation between Dene, Inuvaluit and English.
Tom handed down his report, Northern Frontier, Northern Homeland in 1977. Tom’s recommendations included that no pipeline should be built across the northern Yukon; that a wilderness park should be established to protect the calving grounds of the porcupine caribou herd and that no pipeline development should proceed before the land claims of Indigenous people were settled.
He then indicated an environmentally sound route for a gas pipeline in the Mackenzie Valley in the future. That was eventually the route that was approved. This report was and still is among the best-selling documents published by the Government of Canada.
Berger Inquiry (theatreoffire.org).
After the Mackenzie Valley Pipeline Inquiry, Tom served as the deputy chairman for the World Bank’s independent review of the Sardar Sarovar project in India, and was a Commissioner of the Alaska Native Review Commission.
Legal Career – High Points
Tom’s legal practice was studded with groundbreaking legal cases over six decades. In addition to his work for Indigenous Canadians, Tom took on many cases to secure justice for those wronged by government action and harmful social practices.
For example, Tom represented 167 women subjected to excessive electroshock treatments and kept in artificially-induced sleep for days at the Allan Memorial Hospital in Montreal in the 1950s, securing compensation. Tom also successfully represented women in British Columbia who had been sexually sterilized without their consent, between 1933 and 1969, under eugenics legislation. In the 1990s, he led the British Columbia government’s case to uphold legislation to allow the Province to sue the tobacco industry.
Tom argued his last case, by remote video hearing, before the Saskatchewan Court of Appeal on December 1 and 2, 2020. He retired from the practice of law, at age 87, at the end of December 2020.
Tom is survived by his beloved wife, Beverley Ann (Crosby). They met and fell in love when students at U.B.C. and were married in 1955 spending 65 happy years together. Bev began working at the Native Indian Teacher Education Program (N.I.T.E.P.) at U.B.C. after completed her Master’s in Education.
Tom and Bev travelled to South America, Africa, Europe and Asia. They were a dynamic duo. They raised a family: daughter, Erin (Elliot Poll), a lawyer, and son, David, an artist.
Tom worked hard but he also enjoyed time with his family. He skiied in Vernon with his brother and nieces and nephews. Tom also drove his family up to Penticton every summer to swim in Skaha Lake, to get sunburnt and crowd into the Edgewater motel.
Erin and David travelled with Tom up north separately to enjoy time with “dad” and to attend the Northern games in Tuktoyaktuk: watching the rabbit skinning, bannock making and bean bag kicking contests; spending the 24 hour days in the summer in Yellowknife and Inuvik; sampling caribou meat and weathering lightning storms on the tundra.
When he became a grandfather, Tom became the “spoiler in chief”, enjoying time with each of his grandchildren, Goldie, Morris and Gracie, and spending time in Sechelt catching crabs and wading in the cold water. There were also trips to Cabo San Lucas, when Tom would sunbathe, read his legal briefs and watch the grandchildren scampering about in the sand.
Tom was the author of well-received books and Commission reports including: “Fragile Freedoms”: Legal rights for minorities in Canada; “One Man’s Journey”: an autobiography of Tom’s life in the law; “A Long and Terrible Shadow: white values, native rights in the Americas 1492-1992” as well as Commission reports such as “Northern Frontier; Northern Homeland” about the Mackenzie Valley Pipeline inquiry; “Village Journey”: the Report of the Alaska Native Review Commission and the Sardar Sarovar report about the independent review for the World Bank concerning the impact of dam project in India.
A celebration of Tom’s life will be held at a later date when COVID-19 restrictions allow. In lieu of flowers, please consider donating to the Verna J. Kirkness (Indigenous) Education program, Greater Vancouver Foodbank, Mental Health and Addiction support services and Bard on the Beach. You can read further updates on Tom Berger’s work and legacy at www.thomasrberger.com