THE IBA REMEMBERS THOMAS BERGER QC, OC, OBC, FOR HIS SIGNIFICANT CONTRIBUTIONS TO ADVANCING THE RIGHTS OF INDIGENOUS PEOPLES IN CANADA

May 3, 2021
FOR IMMEDIATE RELEASE

OTTAWA, ONT – The Indigenous Bar Association in Canada (the “IBA”) pays tribute and remembers Thomas Berger QC, OC, OBC, as a tireless and dedicated advocate for Indigenous title and rights. His strong innate sense of justice changed the legal relationship between Canada and Indigenous Nations for the better.

Mr. Berger demonstrated his commitment to learning Indigenous legal traditions while serving as a royal commissioner of the Mackenzie Valley Pipeline Inquiry, during which time he engaged with 30 Dene and Inuvialuit villages across the Northwest Territories. At the time, the proposed pipeline was North America’s largest construction project and proposed to run from Alaska, down the Mackenzie Valley, connecting to existing pipelines in Alberta and then to the U.S. The inquiry highlighted the importance of unresolved issues relating to Aboriginal title, which played a significant factor in halting the massive natural gas pipeline project. This historic moment was indicative of Berger’s commitment to learn about the inalienable relationship between the Indigenous communities and their traditional territories. George Manuel, a renowned Secwepemc leader, referred to Mr. Berger’s book reflecting on the Inquiry and its findings as “the best statement on Indian rights to come from any government since the Europeans first came to Canada.”

Mr. Berger was original counsel to the Nisga’a Nation in the landmark Calder case in 1973. This was the first case in which the Supreme Court of Canada recognized the existence of Aboriginal title in Canadian law. The Nisga’a honoured Mr. Berger’s ground-breaking advocacy for Indigenous rights by giving him a Nisga’a name, Halaydam Xlaawit, meaning “spiritual being of the mountain.”

While serving on the Supreme Court of British Columbia, Mr. Berger controversially used his influence to advance the rights of Indigenous people. He advocated for the inclusion of Indigenous rights in the Constitution Act, 1982. He ultimately left the court in 1983, after facing discipline by the Canadian Judicial Council for publicly criticizing the removal of Indigenous rights in an earlier iteration of the Constitution. In the end, Section 35 and Indigenous rights were reinserted back into the Constitution.

Mr. Berger will be remembered for “always striving to do the right thing”, yet never coming to Indigenous communities with any preconception of what the “right thing” was. He deployed his intellect, compassion and skill tirelessly in the pursuit of justice. He shall leave an enduring legacy of leading the country and his fellow Canadians on a path of redressing significant wrongs.

Berger is survived by his wife, children and grandchildren. The IBA sends their condolences to his family, friends and former colleagues.

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For further inquiries, please contact IBA President Drew Lafond (dlafond@indigenousbar.ca) or visit www.indigenousbar.ca