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Thomas Berger, lawyer who fought for groundbreaking Indigenous land claims, dead at 88


Thomas Berger, a legend in B.C.’s legal and social justice circles, has died at age 88.

The former B.C. Supreme Court judge, NDP politician and lawyer was best known for his work to recognize Indigenous land claims.

Berger, who died Wednesday after a battle with cancer, is also being remembered for his compassion and respect for Indigenous rights.

Former Dene National Chief Bill Erasmus recalled how Berger argued for the Nisga’a Nation in the landmark case Calder vs. British Columbia early in his law career in the late 1960s. 

The eventual Supreme Court of Canada ruling in 1973 marked the first time the nation’s legal system acknowledged the existence of Aboriginal title to land.

“As a young lawyer he stuck his neck out. Not very many people believed we had treaty or Aboriginal rights. Today, it’s common,” Erasmus said.

Appointed to the B.C. Supreme Court in the early 1970s, Berger also led an inquiry that put a pipeline project in the Mackenzie Valley on hold.

In that role, Berger visited 40 communities along the Mackenzie River in the Northwest Territories and Yukon, Erasmus said.

“He did that because he wanted to listen to the people who were on the land and knew the issues of ownership — and so, on that, was really groundbreaking.”

In 1977, Berger released the 240-page Mackenzie Valley Pipeline Inquiry report, which recommended a 10-year moratorium on pipeline construction while Indigenous land claims were settled.

Environmental, Indigenous rights advocacy

After Berger stepped down as a judge, he resumed his legal practice and worked on several high-profile court cases.

In 2017, the B.C. government retained Berger as outside counsel after the province said it would seek intervener status in a legal action against the Trans Mountain pipeline expansion launched by two dozen environmental groups and some First Nations challenging the federal government’s approval of the project.

Berger also represented First Nations and environmental groups against proposed modifications to Yukon’s Peel River watershed.

Chris Ryder, executive director of the Canadian Parks and Wilderness Society’s Yukon chapter, said Berger won the case for them and he was in awe watching him.

“Just the way he had the Supreme Court justices wrapped around his little finger,” said Ryder.

Berger, he said, was warm hearted and quick to chuckle, unpretentious and hard working.

‘We have lost a giant’

Members of the legal community, First Nations and politicians posted messages to social media recognizing Berger’s accomplishments in moving the country forward on issues of Aboriginal title and meaningful public consultation.

“We have lost a giant,” B.C. Premier John Horgan said in a statement.

“He spent a lifetime moving all of us toward a just society. For that, we owe him our thanks and gratitude. His kindness and generosity will long be remembered. His thinking will continue to influence us for generations to come.”

Independent MP Jody-Wilson Raybould expressed her condolences online, saying Berger was a “true trail-blazer who helped change this country for the better.”

‘Indigenous people deserve justice and fairness’

Lawyer Monique Pongracic-Speier, who worked alongside Berger at Ethos Law Group in Vancouver, said he was a great mentor who used his shining intelligence to help people.

His legacy is that of leading Canada on a path to righting historic wrongs, she said.

“Tom said repeatedly that Indigenous people are Canadians, that Indigenous people deserve justice and fairness the same way as other Canadians.”

LISTEN | Retired senator Murray Sinclair recalls his friendship with Berger:

The Current7:58Murray Sinclair remembers Canadian legal pioneer Thomas Berger

Canadian legal pioneer Thomas Berger died Wednesday at the age of 88. Retired senator Murray Sinclair joins us to remember his friend. 7:58

Berger was also an MLA and MP for the New Democratic Party in British Columbia in the 1960s, and briefly served as B.C. NDP leader in 1969.

He was a recipient of the Order of Canada in 1990 and the Order of B.C. in 2004. 

Berger is survived by his wife, children and grandchildren.

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