Thomas Berger Revisits The North
Thomas R. Berger practices law in Vancouver, British Columbia. From 1974 to 1977 he served as the commissioner of the Mackenzie Valley Pipeline Inquiry. His report, Northern Frontier, Northern Homeland (1977), recommended a ten—year moratorium on the building of a pipeline so that native land claims could be settled in the interim. He is no longer opposed to the construction of a gas pipeline as land claims of the Inuvaluit, the Dene, and the Metis of the Mackenzie Valley have now been settled.
In July 1983 he was appointed head of the Alaska Native Review Commission which was sponsored by the Inuit Circumpolar Conference on the effects of the Alaska Native Claims Settlement Act of 1971. The findings of that inquiry are published in Village Journey: The Report of the Alaska Native Review Commission (1985). Mr. Berger is also the author of Fragile Freedoms: Human Rights and Dissent in Canada (1981). He represented the constituency of Vancouver—Burrard as an MP in 1962—63 and was later MLA and leader of the B.C. New Democrats. He served as justice of the Supreme Court of British Columbia from 1973 to 1983.
Photo Creidt: Government of British Columbia
Aurora: In the constitutional conferences which were held to settle the question of aboriginal rights which are enshrined in the constitution, there was no concensus on what aboriginal rights really are. What is your definition of aboriginal rights?
Berger: Well, the Supreme Court of Canada in 1973 said that aboriginal rights really flow from the fact that before the white people came to this country, native societies governed with their own rules and customs. So the rights that native people claim are derived from the fact that they used to occupy the land for centuries before the Europeans came and established their institutions here. And their rights have survived the day because the aboriginal people survive as distinct communities in our midst.
I think aboriginal rights encompass a land base in rural and frontier areas. These rights also encompass hunting, fishing, and trapping rights; a share of revenue from mines and minerals; a measure of self—government; law and order on the reserve; delivery of social and health services; and the right to administer their own child welfare laws. It isn’t difficult to make up a list of things that aboriginal rights encompass. I think that federal and provincial governments, if they studied the subject, would acquire an understanding of what it’s all about.
Aurora: How has the term “existing” affected the interpretation of treaty and aboriginal rights?
Berger: I don’t think it has had much of an effect. It was the use of that word in Section 35 of the Constitution that led the federal government and the provinces to argue for an attenuated view of aboriginal treaty rights. But the way the courts have interpreted Section 35, the word “existing” hasn’t really had much of an influence on the ultimate meaning.
Aurora: Why is there a need to identify and define treaty and aboriginal rights when there are many words in the constitution which are not defined? If the Meech Lake Accord ever gets ratified, for instance, will the phrase “distinct society” have to be defined precisely?
Berger: Well, it seems to me that native people are rightly resentful of the way they were treated by the Prime Minister and the premiers. There has been no amendment to the constitution entrenching the right of native self—government because the premiers said they couldn’t agree to an amendment that was in’ such general language. However, when the Prime Minister and the premiers got together at Meech Lake to divide up legislative power among themselves, they had no difficulty agreeing on the words “distinct society.” And native people asked, “How come you can agree on ‘distinct society’ overnight, without any real consideration of the meaning of the expression, and you can’t agree on the term ‘native self—government’ when we have a pretty good idea of what that means?”
I think that Meech Lake, by itself, doesn’t really affect native rights in the constitution, but the Meech Lake process has led these people to believe that the Prime Minister and the premiers didn’t really take them seriously at the constitutional conference that occurred between 1983 and 1987.
Aurora: Do you believe that Indian nations are sovereign and as such have the right to self—determination?
Berger: Well, I think that the Indian people of Canada have the right to self—determination under the international covenant of civil and political rights. The Indian bands, tribes, and nations are “people” under international covenant. It seems to me, though, that self—determination dovetails with the idea of self—government for native people. If the question isn’t resolved in constitutional conferences by negotiation, it is going to be determined in the courts.
Aurora: The theory of aboriginal rights as interpreted by the courts in Canada has been applied to proprietary rights of Indians and the right to hunt and fish in the lands they’ve occupied from time immemorial. Would I be correct in saying you support the position that has been advanced by native leaders to extend this theory to the sovereignty of first nations and the right to self-determination and self—government as defined by native people themselves, not by governments?
Berger: Well, I think that the Supreme Court of Canada has made it clear that with aboriginal rights, for lack of a better expression called proprietary rights— land hunting, fishing, and so on— the question of native sovereignty has never really been considered by the courts. Bear in mind that native sovereignty as defined by Chief Justice Marshall, in the famous judgements that he wrote in the early nineteenth century, is a limited sovereignty. It isn’t sovereignty in the sense in which Canada and the United States enjoy sovereignty. It’s a recognition of the fact that native people are what Chief Justice Marshall calls “domestic dependent nations.” But that’s a proposition that has not thus far been considered in the Canadian courts. We have, in Canada, as far as native people are concerned, an attenuated form of self—government which the federal government says is granted by the Indian Act, granted by federal legislation. Native people say, no, they have an inherent sovereignty that is akin to the inherent sovereignty in the United States.
Aurora: What do you consider to be the legitimate claims of the Metis to a special status in the Canadian polity?
Berger: Well, the Metis are now recognized as one of the aboriginal peoples of Canada. They were acknowledged by the Manitoba Act of 1870 to have the right, in exchange for the extinguishment of aboriginal titles, to approximately two million acres of land. But their right to that land was undermined, and they have brought a lawsuit to establish their rights under the Manitoba Act. The Supreme Court of Canada is considering whether it will hear the case. But Metis rights are defined by the Manitoba Act, and so that covers what you might call their proprietary rights. As far as the right to self—government is concerned, that’s a matter that ought to be the subject of tripartite discussions between the Metis and Ottawa and Manitoba.
Aurora: Do you think this special status should be extended to those descendants of the Metis who accepted scrip after the Red River Rebellion of 1869 and the Northwest Rebellion of 1885?
Berger: Well, if you acknowledge that the Metis are one of the aboriginal peoples of Canada, you have to agree that they have the right to determine their own membership. It seems to me that for Indian people, that is essential to the whole idea of native self—government. One of the attributes of any self—governing community is that it can decide who is a member. We decide, as Canadians, who can become a citizen of our country. It’s something that has got to come and the sooner the better.
Aurora: As a native of South Africa, where native law is recognized in the judicial system, I found the nonrecognition of aboriginal laws in Canada mystifying. Do you think the Canadian Bar Association should request the federal government to undertake the codification of native laws of all the aboriginal groups?
Berger: I think that we should leave the codification of native law and custom to native people. Some of the bands around the country have enacted by—laws relating to fishing, child welfare, and law and order on the reserve, and these by—laws are based on their traditional customs. It may be that this kind of piecemeal reconstruction of native law and customs is the best way to go about it. I’m very much inclined to leave that to their initiative and not to urge the federal government to get in on the act.
Aurora: Wouldn’t it be more humane to develop aboriginal judicial systems to try some civil and criminal cases affecting native people in their homelands instead of using judicial systems based on European models?
Berger: Oh yes, I think that we’re going to have native courts in this country. Under the Indian Act some minor offences can already be tried by native court. Native bands should be able to establish their own courts and deal with questions of law and order on the reserve, child welfare, and of-fences by young persons. I don’t think that the native communities want to have native Courts in each reserve trying the very serious cases such as manslaughter and murder. But I think there is a concensus emerging that supports the idea of native courts trying a wide range of civil and criminal matters. We have a precedent in the United States where they have a well— developed system of tribal courts. They even have a law school in Oakland to train native persons to be advocates in the native courts.
Aurora: Since native land claims of the Dene, Metis, and the Inuvaluit have now been settled, or negotiations on these are nearing completion, do you have any reservations about the construction of a pipeline to transport oil and gas from the Arctic to southern Canada and the United States?
Berger: I don’t have any major reservations. When I wrote my report back in 1977,1 pointed out that there was no over—riding environmental reason for not building a pipeline from the Mackenzie Delta along the Mackenzie Valley to Alberta. The reason for advocating a ten—year moratorium on construction of such a pipeline was to enable native claims to be settled and now, of course, they have been settled. The claims of the Dene and the Metis have been settled in principle. They haven’t made their land selections, but selections are expected to be completed by 1991 or 1992. Given appropriate environment safeguards, such a pipeline could be built.
The important questions remaining are for the National Energy Board: how much gas does Canada have in the Delta and Beaufort Sea, and what is a prudent export policy for Canada? We’ve always been fascinated by the idea of exporting Arctic gas to the United States. The one thing that we should be concerned about is whether we would wind up subsidizing the export of expensive gas from the Arctic. Those are matters for the National Energy Board, and I don’t pretend to know the answer to them. When I wrote my report in 1977, I included recommendations for environmental safeguards.
Aurora: Do you feel the safeguards you have suggested are strong enough to avert a disaster along the Mackenzie Valley pipeline?
Berger: I think so. First of all, we’re talking about a gas pipeline, and a spill from a gas pipeline would be an emission of gas in the air. It’s a vapour, not a liquid. Even if you had an oil pipeline on the same route, the consequences of the spill from an oil pipeline, while they can be very serious especially in a river or stream crossing are not in any way comparable to what we have seen in the Exxon Valdez disaster.
Aurora: In the light of the rigorous international campaign waged by animal rights organizations, do you feel that trapping and hunting will survive as income—generating activities for northern peoples?
Berger: Well, I think the animal rights people are just as ethnocentric in their own way as the missionaries, the
government, and industry were in the past. Their own cultural view is that certain animals cannot be killed and that even where it is permitted, it must be done only in ways they find acceptable. There is a dreadful arrogance in all this. They are imposing their own beliefs on other people who’ve lived off the land for thousands of years, whose livelihood today, in many cases, depends on living off the land. The interference of these self—righteous people has caused real hardship in the North. Their campaign against the harvesting of seals resulted in a boycott in Europe of sealskins, not just the skins of the whitecoats, but also mature seals. And if you go to the villages in Canada’s eastern Arctic or in Greenland, you’ll see that the loss of these markets has deprived those villages of the cash that they used to earn, and this undermined the whole subsistence economy. It’s really appalling that for the gratification of celebrities looking to maintain their fame and of middle—class people in metropolitan centres in North America looking for a cause, they’ve managed to cause such great disruption to communities.
You know, I’ve been to just about every native village from the Bering Sea to Hudson Bay, and you just cannot believe the resentment that people in those villages have against the animal rights activists. These villagers are at a loss to know why their way of life is being interfered with. These activists are just the latest in a long line of people of the West who have decided they know what’s good for the rest of the world.
Aurora: What lessons can Canadian natives and governments learn from the business experiences of Alaskan natives?
Berger: I think that Canadian natives, certainly in the Northwest Territories and the Yukon, have learned a great deal from the Alaska settlement. In Alaska the Congress of the United States decided that Alaska natives should become businessmen, with a capital “B”. They established native corporations, gave the corporations title to all the traditional native lands, and provided that after twenty years, the shares could be sold to non—natives. The fact is that most of the corporations have failed to make any money, and some of the lands belonging to some of them are being foreclosed. Some of the land may be sold and, of course, the corporations themselves may be soon taken over by non— natives. The result will be the loss of the traditional native lands in Alaska.
It shows how crazy it is to think that we can impose our own norms of economic behaviour on another culture. In Canada, in the settlements that have been reached here, and this applies to the James Bay and Northern Quebec settlements and the settlements of the Northwest Territories and the Yukon, native people have rejected the idea of a shareholders corporation. Instead, they are setting up what are called membership corporations to do business, and only the native people who are members of the band or the tribe can be members of these corporations. So there is no danger of loss of control. The farther North you go, given the climate, the geography, and the sparse population, the more unlikely it is that any business venture will succeed. That’s why it’s idiotic to think that we could put all these little villages into business. What are they supposed to do—set up shoe factories and compete with the Koreans?
Aurora: Recent scientific studies have revealed that most of the animals hunted for food in the Arctic have ingested large quantities of carcinogenic pollutants from the industrialized world. What are the implications of these revelations to the way of life of native people?
Berger: I suppose this simply highlights the need for international cooperation to protect the environment. At least we haven’t yet had the kind of disaster they had in Lapland, where the fall—out from Chernobyl has forced them to destroy great herds of reindeer. The native people are in many ways the first victims to see their resources threatened by pollution. It is a threat to which all of us eventually must succumb. Unless we cooperate we’re going to poison the whole planet.
Aurora: Do you see a disappearance of sealing, whaling, and fishing as the basis of a subsistence economy?
Berger: No, I think the subsistence economy based on hunting, fishing, and trapping will survive. When I went to the North to conduct the Mackenzie Valley inquiry in 1977, I found that the hunting, fishing, and trapping economy was thriving, and it’s doing even better now. My whole emphasis was don’t put all your eggs in one nonrenewable resource oil— and—gas basket, because after the oil and gas are gone, native people still need that traditional economy to survive.
In Alaska, I found when I was holding hearings there from 1983 to 1985 that the traditional economy was very strong in many areas where its demise had been predicted. The only thing that can destroy it is the same thing that can destroy us all: the environmental absent—mindedness and bloody—mindedness of mankind.
Village Journey: The Report of the Alaska Native Review Commission. Hill and Wang, 1985.
Fragile Freedoms: Human Rights and Dissent in Canada. Clarke, Irwin, 1981.
Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry. 1977.
Article originally published Spring 1990
Since writing this article Thomas Berger is still active writing books and serves on various committees in his field of expertise. He was heavily involved in the process and signing of the Nisga'a Treaty in British Columbia in the late 90's - in support of the Nisga'a Nation. He has been a recipient of the Freedom of City (June 16, 1992) award (Freedom of the City is the highest award given by the City of Vancouver. Reserved for individuals of exceedingly high merit, it is given only in exceptional cases, usually to someone who has gained national and international acclaim in the arts, business or philanthropy, and who has brought recognition to Vancouver through his or her achievements.), the 1978 Sierra Club Award for Distinguished Achievement and has had the Thomas R. Berger Bursary in Law (UBC) named after him. The bursary is eligible for First Nations Students studying at the Faculty of Law.
Updated March 2012
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Mabindisa, Isaac (1990). Thomas Berger Revisits The North. Aurora Online: