Berger helped launch land claims industry

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One Man's Justice

By Thomas Berger

Douglas & McIntyre

346 pages (hc)

$40

Former Supreme Court justice, political leader, and long-time lawyer Thomas Berger was on Vancouver Island recently for the launch of his new book, One Man's Justice, which documents a dozen important legal cases that Berger fought during his 50-year law career, including those that became the seeds for the BC Treaty Process.

"In the mid-1960s, I argued early cases dealing with Aboriginal rights, which led my career, unexpectedly, down a lengthy road," Berger writes in the preface to this latest book.

"I had a small walk-up law office. I practiced by myself and the rent was $120 a month. I had a secretary and my mother, Perle, acted as my bookkeeper. From that pocket-sized office, the land claims industry developed," he wrote.

His first case was the Clifford White and David Bob case in Nanaimo where he successfully defended two Sneneymuxw hunters charged for hunting out of season while exercising their Douglas Treaty rights.

"The case did not sound like an important case. But it was to be the first shot fired by the Aboriginal peoples of Canada in their campaign to reclaim Aboriginal and treaty rights," wrote Berger. "Thus did I become a lifelong defender of Aboriginal causes."

In 1966, Berger was elected to the B.C. legislature. It was there that he met Frank Calder, the first Native person in Canada to hold elected office in any provincial legislature. Calder, a Nisga'a member, was first elected as an MLA in 1949-the same year Aboriginal people were allowed to vote in the province, and 11 years before First Nations people could vote or hold office federally.

"In 1966, Frank Calder and the four chiefs of the Nisga'a villages crowded into my walk-up law office on Georgia Street to tell me that they wanted to proceed with a lawsuit to prove that their Aboriginal title had never been extinguished," recalled Berger. "Indian bands throughout B.C. were opposed to the Nisga'a bringing a suit to establish Aboriginal title. They said to the Nisga'a 'You'll lose, and then our claim to Aboriginal title will be lost forever.' The Nisga'a, however, decided to go ahead... In that [White and Bob] case, the door to recognition of Aboriginal title had been opened a crack by Justice Norris. The Nisga'a wanted to see if we could open it wide," he wrote.

Seven years later, in January 1973, the Supreme Court of Canada ruled four-to-three against the Nisga'a, but six of the seven judges held that Aboriginal titled existed in Canadian law.

"Sometimes a loss is as good as a win," said Berger.

The decision resulted in the eventual launch of treaty negotiations between B.C., Canada, and the Nisga'a Nation, which led to the ratification of the Nisga'a Final Agreement two years ago.

So what does Canada's first Aboriginal rights and title lawyer have to say about the treaty "industry" he helped launch?

"It's hard to offer a comment on the state of treaty negotiations today," said Berger. "These things go in cycles where sometimes the battle is fought in the courts, sometimes the battle is fought in the newspapers, and sometimes the battle is fought in real negotiations. But we don't seem to be in such a time," he said.

According to Berger, the strength of the Nisga'a treaty team was consistent leadership, while federal and provincial negotiators and leaders would fade in-and-out every year or two.

"They had to keep re-educating these [provincial and federal negotiators and political leaders]. Every change of government slows things down until the new people get their footing," he said. "We've hit a pause right now, but things will get going again. The province seems to be moving away from their hard-line referendum position and the courts and the business community keeps prodding the government to settle treaties, so I'm still optimistic," he said.

One Man's Justice is Berger's fourth book. He has written Northern Frontier, Northern Homeland: The Reportof the MacKenzie Valley Pipeline Inquiry, Fragile Freedom, Village Journey, and A Long and Terrible Shadow.