Obituary: Former B.C. NDP leader and legal legend Tom Berger dies at 88

  • April 28, 2021

By John Mackie for The Vancouver Sun

If he had won the 1969 provincial election, Tom Berger would have been the first socialist premier in B.C. history.

But Berger’s NDP lost to W.A.C. Bennett’s Socreds. So Berger left politics and became one of the great Canadian legal figures of his time.

Berger was the original lawyer for the Nisga’a Nation in the landmark Calder case in the 1960s and early ’70s, which established Aboriginal title in Canadian law.

After he was appointed to the B.C. Supreme Court in 1971, he headed the Mackenzie Valley Pipeline Inquiry from 1974-77.

His report called for a halt to the pipeline until Native land claims were addressed. Native leader George Manuel called it “the best statement on Indian rights to come from any government since the Europeans first came to Canada.”

Berger died Wednesday in Vancouver after a battle with cancer. He was 88.

“Thomas R. Berger believed in justice,” said B.C. Premier John Horgan in a statement. “That meant he needed to address injustice. Mr. Berger was counsel for the Nisga’a elders who were plaintiffs in Calder v. Attorney-General for British Columbia (1973), a historic case in which the Supreme Court of Canada first acknowledged the existence of Aboriginal title to land.

“His work as commissioner of the Mackenzie Valley Pipeline Inquiry resulted in a report highlighting unresolved land claims, as well as the threat to wildlife upon which the local Indigenous Peoples relied on for survival. An unprecedented public consultation process helped highlight what was at stake for the Indigenous peoples of the north.

“As a lawyer, judge and commissioner, he helped countless ordinary people in their struggles against powerful interests. He changed life in this province and in this country for the better.”

Thomas Rodney Berger was born in Victoria on March 23, 1933. His father was in the RCMP, and Berger moved a lot as a child, attending elementary school in B.C. and Saskatchewan before going to high school in North Vancouver.

After getting his BA and law degree at the University of B.C., he was called to the bar in 1957. He quickly made a name for himself.

“He was involved in a judicial inquiry relating to the collapse of the Second Narrows Bridge (in 1958),” said his former law partner Don Rosenbloom. “The Ironworkers (union) retained Tom to handle what became a very well-publicized and controversial judicial inquiry into the collapse.”

In 1960, he took on the Workmen’s Compensation Board after it refused to accept a certificate by a doctor stating that miner Luis Battaglia suffered from silicosis. Battaglia hoped to get a pension, but died before he could receive it. A Royal Commission was eventually appointed to look into the WCB.

When Rosenbloom was in law school from 1965-68, Berger’s cases were often discussed.

“It wasn’t just labour, it was everything from defamation to environmental (law), he did a big, big case on Vancouver Island, to First Nations cases,” said Rosenbloom. “He was a lawyer’s lawyer, in the sense that he was a litigator. He never did a solicitor job in his life, he never did a will in his life, he never did conveyancing in his life. He was very much born for the courts, and had a very high ethical standard.”

In 1962, Berger entered politics, and was elected as an NDP MP in Vancouver-Burrard. But he was beaten by Liberal Ron Basford in the 1963 federal election, and switched to provincial politics. He lost again in the 1963 provincial election, but was elected in 1966.

He still maintained his law practice, and took on the Calder case.

“Tom filed the writ in the B.C. Supreme Court in 1969,” said Rosenbloom. “It alleged that Aboriginal title had never been extinguished, and the First Nations maintained their ownership of the land.

“Lawyers in this city were just laughing, it was just ‘give me a break.’ They couldn’t believe a case was being taken that made such a suggestion. But it turned out not to be a joke. And look where we are today.”

In 1967, Berger unsuccessfully challenged incumbent NDP Leader Bob Strachan for the provincial leadership. He was defeated, but Strachan wound up resigning in 1969 and Berger was elected provincial leader after a tough battle with Dave Barrett.

But the wily W.A.C. Bennett called a snap election and the NDP were beaten so badly Berger lost his own seat.

“I was never really comfortable on the campaign trail,” he admitted to The Vancouver Sun’s Eve Rockett in 1971. “I never got used to the constant handshaking and talking to people I’d never met before.”

He resigned and returned to the law, but in 1971 he was appointed to the B.C. Supreme Court, at only age 38.

Berger was legal counsel on the Calder case throughout the court levels, but the judgment was rendered after he was already sitting on the bench. The judges were split and the case was lost on a technicality. But it changed history.

“It was at that point in time in history that (Prime Minister) Pierre Trudeau announced, with Jean Chretien as the minister of Indian Affairs, that the federal government wanted to take a sober look at the whole thing,” said Rosenbloom. “They decided that they wished to sit down and started negotiating with the First Nations of Canada. The first up were the Nisga’a, because they had initiated the suit that went to the Supreme Court of Canada. It is of incredible importance, that case, because that’s what got the whole thing rolling.”

In 1974, Berger was appointed to head the Mackenzie Valley Pipeline Inquiry. He travelled widely and consulted extensively with First Nations.

“’It’s part of the Canadian experience, coming to terms with the people who were here first,” Berger said in 1997. “Any civilized society has to do that — and it ain’t easy. We went to every village and listened to everyone who had something to say. It was an education for me and, because it had such a high media profile, in a sense an education for the whole country.”

Berger left the court in 1983, after having his knuckles rapped by the Canadian Judicial Council for criticizing the federal/provincial constitutional accord for removing Aboriginal rights.

“I did what I thought I had to do,” he said.

In the end, Aboriginal rights were reinserted in the Constitution. The Nisga’a Nation honoured Berger’s pioneering work in Native rights by giving him a Nisga’a name, Halaydam Xlaawit, or “spiritual being of the mountain.”

Berger presided over several more inquiries and commissions in recent years, and remained active as a lawyer until last year. He was named to the Order of Canada in 1990 and the Order of B.C. in 2004. He is survived by his wife Beverly, daughter Erin and son David.