Biography & Autobiography Lawyers & Judges
Against the Odds
The Indigenous Rights Cases of Thomas R. Berger
- Publisher
- Durvile Publications
- Initial publish date
- Sep 2024
- Category
- Lawyers & Judges, Indigenous Peoples
-
Paperback / softback
- ISBN
- 9781990735486
- Publish Date
- Sep 2024
- List Price
- $37.50
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Description
Thomas Berger's earliest cases astonished the legal community by asserting Indigenous rights that had not been considered previously by Canadian courts. The success of these cases, over only a decade, encouraged First Nations across Canada to take a more assertive stance in the years that followed. Mid-career, Justice Thomas Berger accepted the challenge of leading the Mackenzie Valley Pipeline Inquiry. He organized the inquiry to give northern First Nations an equal voice in the proceedings by holding thirty community hearings in which all were invited to participate. Berger's careful, reasoned arguments prevailed time after time. His Indigenous cases pushed the margins of the legal debate: they demanded that governments take greater accountability for honouring their commitments to Indigenous communities. Thomas Berger's principal gift was to see the law not as a rigid, inflexible structure, but as a framework that could adapt to different circumstances through changing times.
About the authors
Hamar Foster is a professor in the Faculty of Law, University of Victoria.
Thomas Rodney Berger QC OC OBC was a Canadian politician and jurist. He was briefly a member of the House of Commons of Canada in the early 1960s and was a justice of the Supreme Court of British Columbia from 1971 to 1983. In 1974, he became the royal commissioner of the Mackenzie Valley Pipeline Inquiry, which released its findings in 1977. He was a member of the Order of Canada and the Order of British Columbia. Justice Berger died on April 28, 2021.
Excerpt: Against the Odds: The Indigenous Rights Cases of Thomas R. Berger (edited by Drew Ann Wake; foreword by Hamar Foster; commentaries by Thomas R. Berger)
Confrontation in Norman Wells
Three weeks after the General Assembly ended, the Yellowknife newspaper, News of the North, published the draft of the Dene Declaration that had been discussed. It came with a stinging critique by the newspaper’s publisher, Colin Alexander, who called it “… a draft plan of action for a war of liberation.”
The article was picked up by the newspaper in Inuvik, The Drum. There the publisher, Tom Butters, aired his opinion that the Dene Declaration had been written by a ‘white’ theoretical revolutionary. “The objectives are general and vague and the prose loosely structured from the Maoist, Communist lexicon, ie. creating democratic and egalitarian organizations…”
The news about the Dene Declaration upset many non-Dene citizens who feared that the growing unrest might weaken the dominant role of industry and government in the communities.
Days after the newspapers published their opinions, Judge Berger arrived in Norman Wells. The community had a decades-long history with the petroleum industry. Raymond Yakeleya recalls that his grandfather had seen oil seeping onto his land. “If you picked up a rock from one of the houses and threw it, the rock would land where the oil was seeping up. The Elders wanted to see what properties oil had so they’d take a little cup of oil and pour it on the fire and the fire would come up. So for many generations, our people knew about this oil.”
In the early 1900s, the family took a pail of the oil to the Bishop and authorized him to send it south to be analyzed. It went to Pittsburgh, where they discovered that the oil was of very high quality. But the report was never sent back to the family.
“All of a sudden we saw geologists staking claims around our grandparents’ houses,” says Raymond. “They sent a drill rig down in 1919. My grandparents came back home one day and these white men were occupying their homes. They drilled and went down 700 feet and hit the main pool of oil.”
Very quickly, Norman Wells developed into a white man’s town. Imperial Oil built huge oil storage tanks along the bank of the river. A pipeline followed. During World War II one of the large tanks burst, and oil flooded into the river. Thousands of ducks died.
By mid-century, Norman Wells was divided between Dene families and newcomers from the south. The company store was only open to those who worked for Imperial Oil and the rule was rigorously enforced. In the 1960s, when two young Dene men from the community of Tulita drowned in a boating accident near Norman Wells, residents of Tulita travelled fifty miles downriver to search for their bodies. After a week, they ran out of food. The Chief asked the store in Norman Wells to sell food to the search party, but the manager refused. The bitterness is still palpable.
Editorial Reviews
“For many, the impact of the Berger Inquiry Report, Northern Frontier, Northern Homeland lent credence to the idea that Indigenous voices could and should be heard and taken into account in decisions that affect Indigenous Peoples and their lands. More than 40 years later, development on Indigenous lands continues to be a challenging issue facing Canada and Indigenous People are regularly consulted throughout the process." — Chief Justice Shannon Smallwood, Supreme Court of the NWT
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