An Indigenous rights maverick
Against The Odds: The Indigenous Rights Cases of Thomas R. Berger
by Drew Ann Wake (author & editor)
Calgary: Durvile & Uproute Books, 2024
$37.50 / 9781990735486
Reviewed by Sage Birchwater
*

Thomas Rodney Berger was larger-than-life in Canadian jurisprudence, politics, and First Nations justice. He is perhaps best known as the commissioner who led the Mackenzie Valley Pipeline Inquiry for the Canadian government in the mid-1970s. But he was more than that.
In the Northwest Territories he’s still considered an icon. In social justice circles he is applauded as the maverick who lit the fire under Indigenous rights in Canada.
Drew Ann Wake does a masterful job fleshing out Thomas Berger’s story in Against the Odds. She was a cub reporter for CBC Radio in the Northwest Territories when the Mackenzie Valley Pipeline Commission hearings got underway in March, 1974. By June 1977, when Berger released the first volume of his report, Wake and Berger had become trusted friends.

Against the Odds includes the writings of several other authors besides Wake and Berger: law professor and photographer Michael Jackson KC, Dalee Sambo Dorough PhD, Jean Teillet LLM, Hamar Foster KC, and Shaznay Waugh. And there are a host of other speakers from recorded interviews Wake collected which helps mold the narrative into a “document by committee.”
At first, I was intimidated by the complexity and scope of the book. Especially with so many voices involved. But very quickly Wake provides a conduit into Berger’s story that makes it reader-friendly.
She starts at the beginning of Berger’s career with his first Indigenous rights case as a young lawyer in 1963. Two Snuneymuxw men, Clifford White and David Bob, were convicted of hunting deer illegally near Nanaimo on Vancouver Island. After their lawyer and the Indian agent both abandoned them, the two men attempted to defend themselves citing a treaty drafted by Sir James Douglas more than a hundred years earlier that guaranteed their right to hunt. But magistrate Lionel Beever-Pots threw out their argument, insisting the Treaty no longer applied. He found them guilty and fined them for the offence and in the case of White, who couldn’t come up with the money, sentenced him to jail in Oakalla prison.

Hamar Foster points out in the foreword that Aboriginal rights and title were not being taught in Canadian law schools at that time.
Berger took the case to appeal, and successfully convinced the Supreme Court of Canada that Aboriginal rights based on treaties established 110 years earlier on Vancouver Island by Governor James Douglas had never been extinguished.
That was the beginning.
It’s good to understand how Against the Odds came about. Wake explains how during the last months of Berger’s life they were combing through his boxes of correspondence and speeches, and he surprised her by handing her the chapters of an unfinished book with the note: “Do with these what you will.”

These essays and chapters authored by Berger help form the core of the book.
The second chapter, written by Berger, introduces Indigenous crusader and politician Frank Calder and the attempt by Nisga’a First Nation to gain title to their traditional lands in the Nass Valley. Berger states: “The taking of First Nations lands was the first and greatest of many injustices to which Indigenous people of British Columbia have been subjected.”
He says settlers were aided and abetted by the colonial government to appropriate land that had been occupied for centuries by First Nations people. The one honourable exception he notes, was Governor Douglas creating treaties on Vancouver Island.
Berger spares no punches describing Canada’s treatment of Indigenous people as apartheid. “I believe Indigenous people should no longer be second-class citizens in British Columbia.”
Wake concludes the Calder Case narrative, describing a confrontation between a Nisga’a chief and a colonial surveyor who tried to convince the chief he was there to give him some land. “Putting his rifle on the surveyor’s chest the chief asked how could he give what wasn’t his to give? This land already belongs to me.”
The Calder case was an uphill battle. When Berger went to file the writ in British Columbia Supreme Court it was received with hilarity by the legal profession. Don Rosenbloom, who was articling for Berger at the time, says Berger had the audacity to claim that British Columbia was owned by people who were not white and Anglo-Saxon—but First Nations. “Nobody had a clue that Aboriginal title had not been extinguished.”
The Calder case went to the Supreme Court of Canada and lost on a technicality, but the important achievement was entrenching the concept of Indigenous title to traditional lands into modern Canadian law for the first time.

Rosenbloom says Berger’s step by step strategy accepted losses along the way. “He realized this area of law had to be developed in incremental stages.”
The Calder appeal woke political leaders to the concept of negotiating land claims. After the Supreme Court ruling, Prime Minister Pierre Trudeau acknowledged that Indigenous people did have rights and title and that it was something the country would have to deal with.
It was while Berger was defending the Calder case in the Supreme Court of Canada that he got a call from Attorney General John Turner inviting him to sit on the BC Supreme Court as a judge.
Berger wrestled with the decision, worried that the appointment would derail him from the important work he was doing.
But as Don Rosenbloom points out: “Had he not been a judge, he wouldn’t have been appointed to lead the Mackenzie Valley Pipeline Inquiry.”
Another aspect of Berger’s curriculum vitae that qualified him to head the Pipeline Inquiry was his experience serving briefly, both as a member of parliament and as a member of the British Columbia legislature. He quickly realized he could better serve outside the political realm.
Berger’s wife, Beverley Crosby Berger, told Drew Ann Wake that her husband’s years in politics helped him with his work as a lawyer, because he learned how governments operated and how bureaucracies worked.
The second part of the book contains more than 150 pages devoted to the Mackenzie Valley Pipeline Inquiry. Wake gives a thorough historical perspective from the discovery of natural gas at Prudhoe Bay in Alaska in 1967 and the proposal to build a natural gas pipeline along the Yukon’s northern slope to the Mackenzie River delta, then up the Mackenzie Valley to Alberta and onward to continental United States.
She also outlines what’s known as the Caveat Case where NWT Indigenous leaders set out to clarify that two Treaties, numbers 8 and 11, signed by Dene chiefs in 1899 and 1921, misrepresented the intent of the agreement. The written text stated that the Dene had given up Aboriginal title to their traditional territory. Elders, who were young men in 1921 when the treaty was signed, argued in the 1970s that what they signed was a peace agreement with the federal government, not a giving up of territory. Of course, in 1921 the Dene signatories could not read or write the documents they signed with an X.
So, the federal government had an added urgency to resolve Indigenous land claims.
When Berger was appointed to lead the Pipeline Inquiry, he clearly understood it wasn’t his decision to say whether the pipeline should be built or not. That was up to the politicians.
Berger explains the Inquiry Mandate. Then Michael Jackson, Special Counsel hired by Berger to set up hearings in remote communities, describes his unique role as the emissary to Dene and Inuvialuit communities on behalf of the Inquiry. He explains how Dene Chief George Kodakin arrived in Ottawa representing the Indian Brotherhood of the NWT and suggested to Berger that he spend a year in his home community of Fort Franklin (now known as Deline) on Great Bear Lake before the hearings began, to gain a better understanding of the people, the land, and the way of life that would be impacted by a pipeline.
“He offered to teach the judge about the importance of the land to sustain the Dene way of life,” Jackson says. “After that he felt the judge would be in a better position to lead the Inquiry.”
Berger liked the idea but couldn’t take the time to be away from his duties with the Inquiry, so he asked Jackson if he and his young family would be his proxy.
That’s how Jackson got his feet. After he and his wife, Marcie, and their young son, Shane arrived at Deline, Jackson went to the chief’s house to reintroduce himself. When he got home he found his wife and son surrounded by kids from the village.
He says he observed two kinds of meetings: one where the community got together to organize caribou hunts and reach important community decisions; and the other more formal meetings when government officials arrived. These business meetings were hurriedly conducted in a small room away from the rest of the people where just the chief and council were “consulted” with a predetermined agenda.
He says the agendas of the community meetings were of their own making, and were carried out in conformity with the traditional pattern of decision-making, which operated by consensus.
Jackson encouraged the communities to host the Inquiry hearings closer to their own style of decision-making. Then to enhance his understanding of the Dene way of life, he was invited to accompany one member of the community on a five-day hunting and trapping expedition. Before they headed out the women got together and made him a parka to withstand the -50 Celsius temperatures.

Jackson learned that to get maximum input from the community they should start the hearings in the afternoon and go into the evening. The result was that instead of the usual formal government consultation which might last a few hours, from 10 a.m. to 4 p.m., many of the hearings in the larger communities took place over three days and went late into the evening.
The oil and gas companies and promoters of the pipeline project were pretty confident of the outcome of the hearings. They had proposed three possibilities for routes and they hedged their bets that if one route wasn’t satisfactory, surely the Inquiry would approve one of the others.
After all, they offered jobs.

But Berger was determined to give northern First Nations an equal voice in the proceedings by holding thirty community hearings throughout the region where everyone was invited to participate. He was determined to listen to the Indigenous people who lived there.
The political pressure was immense to conduct the proceedings as “business as usual” and shuffle the Indigenous inhabitants out of the way and assimilate them into Canadian society so industry could have its way with the land and resources.
Some saw the inquiry as merely a process of rubber stamping the grandiose plans of development. Some business people in Yellowknife saw the Inquiry was a stopgap measure to make the government look like it cared about the environment and land claims.
Wake lists the various parties presenting at the Inquiry: Canadian Arctic Gas Pipeline Limited (CAGPL), a consortium of 20 American and Canadian corporate members; Foothills Pipelines, representing Canadian pipeline interests; Canadian Arctic Resources Committee (CARC), a group of environmental organizations from across Canada; the Dene Nation and Metis Association; and the Committee for Original Peoples Entitlement (COPE) representing the Inuviahuit people of the Mackenzie Delta.
One big issue was how to protect the 110,000-strong Porcupine caribou herd calving grounds on the North Slope of the Yukon, described by CARC as an international treasure. The other concern was for the whales that migrated to the Beaufort Sea to calve. Both were an important food source for the Inuviahuit people.

In the summer of 1975, the hearings got underway in remote communities like Aklavik, Fort McPherson, Old Crow, Norman Wells, Fort Good Hope, and Fort Simpson.
In some communities the debate was polarized with some pro-business non-Indigenous participants complaining that Berger was allowing too much time for Indigenous people to speak. One woman in Inuvik argued that Inuvialuit speakers should only be given three to five minutes to say what was on their minds. When Berger tried to respond, the woman cut him off, saying the translations into the Inuvialuit language were taking too long.
Berger persisted calmly: “I want to hear from Inuit, white and native, and it may take a little while.”
He told the complainer that the Inuvialuit speakers took the trouble to come to the hearing and he intended to listen to them, “as I intend to hear you.” He also affirmed the hearings would continue in both languages.
“I’m afraid you and I are at odds about that, but I am running the hearing, so I’m afraid we’ll do it that way.”

At Fort Good Hope, the intense debate and expressions of opposition to the pipeline was fueled by the recent Dene Declaration of 1975. The young chief Frank T’Seleie opened the hearing by stating: “Mr. Berger there will be no pipeline because we have plans for our land. We no longer intend for our land and our future to be taken and destroyed to make someone else rich.” Then he accused Bob Blair, president of Foothills Pipelines, as a twentieth-century General Custer.

Wake says Blair was clearly shaken by the insinuation, and stated he hoped land claims would be settled before pipeline construction began. “This was likely a first admission of its kind by the petroleum industry in Canada,” Wake writes.
In giving the Inquiry Recommendations, Berger says he advised the federal government that a pipeline corridor was feasible to transport gas and oil from the Mackenzie delta to Alberta, but he recommended postponing any construction for ten years to enable land claims to be settled first.
On the matter of the natural gas pipeline from Alaska to the Mackenzie delta, he recommended against impacting the northern slope of the Yukon and Arctic Ocean so as not disturb the calving grounds of the Porcupine caribou and the adjacent calving grounds of the whales. He also noted the importance of the region to the migration of the snow geese that feed on the Arctic grasses.
In the final section of the book, Wake describes the parallel of controversy Berger shared with his father, Thore Berger, a former RCMP investigator. On a matter of principle, his dad refused to stand down on charging a high-ranking naval officer because he reasoned no man is above the law. As a result, at 51 years old he was forced to resign from the Force.
Similarly, when Justice Thomas Berger spoke out against the Trudeau government removing a clause enshrouding Aboriginal and treaty rights from the proposed Canadian constitution in late 1981, he was met with serious reprimand from both Prime Minister Pierre Trudeau and Chief Justice Bora Laskin.
Thanks to Berger and others speaking out, the aboriginal and treaty rights section was reinserted into the constitution before it became law in 1982.
Wake says, like his father before him, at 50 years old, acting on an issue of conscience, Berger resigned from the bench and returned to the practice of law.

Shortly after returning to private practice, Berger was invited to lead the Alaska Native Claims Review. Dalee Sambo Dorough PhD, head of the Inuit Circumpolar Conference, describes Berger’s role in reviewing legislation passed by US Congress in 1971 to extinguish Aboriginal rights in Alaska.
Like he did in the Mackenzie Valley Pipeline Inquiry, Berger listened to what the people had to say. And he wasn’t constrained by the clock.
“Tom Berger and the Alaska Native Review Commission provided a genuine opportunity for people to be heard directly without any time limits,” says Jim Sykes, who recorded the proceedings at the 57 village hearings. “It gave space for people to talk to others in the room, and to talk to policy makers.”
Berger published his report of the Alaska Native Claims Review in a book Village Journey in 1985.
Wake concludes Against the Odds with two important cases of Berger’s career.

In Chapter fourteen Jean Teillet, the great grandniece of Louis Riel, shares the essence of the Metis 150-year struggle for justice. In 1870, the Manitoba Act was created by Prime Minister John A. MacDonald promising 1.4 million acres of land to the Metis for joining confederation. But that never happened.
The Metis never gave up, and in 1985 Berger got involved helping to research the history of the Manitoba Act. The case took 28 years to work its way through the courts. Finally in March 2013 the Supreme Court ruled that the promise to the Metis had not been implemented and that the government had breached the “honour of the Crown.”
Chapter fifteen highlights the Peel Watershed case in northern Yukon. In 1991, the First Nations in the Peel Watershed settled their land claims with the federal government which ensured the Peel Watershed would be protected. Berger writes that the fascinating feature of the land claim agreement provided that when First Nations and government were locked in controversy, everyone would be heard. “It was a remarkable document.”
In 2004, the Yukon government established a five-person panel to recommend a plan for the Peel Watershed. Berger points out the area is the size of Scotland or New Brunswick. After five years, the panel, in a 300-page report, recommended that 80 percent of the watershed be preserved as protected land.
Then in 2011, the newly elected Yukon Party announced it was no longer bound by the Peel Watershed agreement. In 2014, a consortium of Indigenous groups and environmental organizations hired Berger to help fight their case. Once again Berger argued that the Yukon government did not uphold the “honour of the Crown” respecting the land claim agreement. Though they won their case in the Yukon court, the government appealed. Finally on December 1, 2017 the Supreme Court of Canada rendered its decision that the Yukon government had not acted honourably.
Thomas Berger argued his final case in December 2020, representing the Peter Ballantyne Cree Nation in the Saskatchewan Court of Appeal by video link. He died four months later on April 28, 2021, a month after celebrating his 88th birthday.
“But he and those he listened to and worked with live on in this book,” states Hamar Foster in the Foreword to Against the Odds.
Drew Ann Wake sums up Berger as a man who was guided by principle, and not whether or not he was going to win the case before him.
*

Sage Birchwater, a long-time resident of the Cariboo-Chilcotin, has written several books about the area including Chiwid (New Star, 1995). Born in Victoria in 1948, Birchwater was involved with Cool Aid in Victoria, travelled throughout North America, and worked as a trapper, photographer, environmental educator, and oral history researcher. Sage served as the Chilcotin rural correspondent for two local papers for 24 years while raising his family south of Tatla Lake. He has also lived in Tatlayoko, where he was a freelance writer and editor, and Williams Lake, where he was a staff writer for the Williams Lake Tribune until his retirement in 2009. His other books include Williams Lake: Gateway to the Cariboo Chilcotin (2004, with Stan Navratil); Gumption & Grit: Extraordinary Women of the Cariboo Chilcotin, (2009); Double or Nothing: The Flying Fur Buyer of Anahim Lake (2010); The Legendary Betty Frank (2011); Flyover: British Columbia’s Cariboo Chilcotin Coast (2012, with Chris Harris); Corky Williams: Cowboy Poet of the Cariboo Chilcotin (2013); Chilcotin Chronicles (2017), reviewed here by Lorraine Weir; and Talking to the Story Keepers: Stories from the Chilcotin Plateau (Caitlin Press, 2022), reviewed here by Richard T. Wright. [Editor’s note: Sage Birchwater has recently reviewed books by Corinne George, Sandra Hayes-Gardiner, Lorraine Weir, with Chief Roger William, Trevor Marc Hughes, Hamilton Mack Laing, and Mykhailo Ivanychuk for The British Columbia Review.]
*
The British Columbia Review
Interim Editors, 2023-26: Trevor Marc Hughes (non-fiction), Brett Josef Grubisic (fiction)
Publisher: Richard Mackie
Formerly The Ormsby Review, The British Columbia Review is an on-line book review and journal service for BC writers and readers. The Advisory Board now consists of Jean Barman, Wade Davis, Robin Fisher, Barry Gough, Hugh Johnston, Kathy Mezei, Patricia Roy, and Graeme Wynn. Provincial Government Patron (since September 2018): Creative BC. Honorary Patron: Yosef Wosk. Scholarly Patron: SFU Graduate Liberal Studies. The British Columbia Review was founded in 2016 by Richard Mackie and Alan Twigg.
“Only connect.” – E.M. Forster
One comment on “An Indigenous rights maverick”
When Tom Berger and Dave Barrett ran for the NDP leadership in 1968, I would have supported either of them. I was tired of yelling “30 years is enough”. I was happy to see all the changes Barrett made in 1972, but always wondered how things would have been different with Tom Berger. It is clear that Tom Berger would have made a better world no matter what he did.