Opinion Column

Unique woman inspired Berger to aid aboriginals

Ian Mulgrew

In this July 7, 2010 file photo, (from the left) John Morrisseau, past Manitoba Metis Foundation president, current Manitoba Metis Federation president David Chartrand, Tom Berger, a lawyer, and national president Clem Chartier attend a news conference at the MMF home office in Winnipeg to discuss a land claim. (Postmedia Network files)

In this July 7, 2010 file photo, (from the left) John Morrisseau, past Manitoba Metis Foundation president, current Manitoba Metis Federation president David Chartrand, Tom Berger, a lawyer, and national president Clem Chartier attend a news conference at the MMF home office in Winnipeg to discuss a land claim. (Postmedia Network files)

Nearly half a century after he stood in the Supreme Court of Canada and made history for aboriginal people, Tom Berger rose again in the august chamber.

On the eve of his 84th birthday, the man once known across the north as "Ni-wha Judge" (Our Judge) asked the high court last week to once more step in to help the country's founding peoples work toward reconciliation.

His appearance long ago led to the 1973 Calder decision and modern treaty signing.

With chiefs and elders arrayed behind him, Berger said the treaty process had run into trouble over a huge swath of pristine wilderness in the Yukon. He wanted the court to provide some guidance on how to interpret these complicated pacts that are very much his life's legacy.

Born in 1933, Berger received his real legal education in Vancouver from Tom Hurley, a hard-drinking loquacious Irish lawyer known for his acumen, his support of the underdog, and his love of boxing.

Under Hurley's tutelage, Berger earned headlines for several victories.

But it was Hurley's Welsh wife Maisie who infected Berger with her passionate belief that First Nations still owned British Columbia.

A cousin of the Duke of Argyll, family friend of Rudyard Kipling, great-granddaughter of Sir Alexander Johnston, who freed the slaves of Ceylon, Maisie was unique. From the moment she made Vancouver her home in 1918, she was incandescent.

She became B.C.'s most vocal advocate for native rights. Most of the province was not ceded by treaties.

In 1946, Maisie founded The Native Voice, the country's first aboriginal newspaper. She was only woman accepted into the Native Brotherhood, the major provincial First Nations group in mid-century, and was named Chief Sim-Klux, Mother of the Fin-Back Whales of the House of Gooksan.

More than anyone, it was Maisie who indelibly stamped Berger with the fervour for aboriginal rights.

And though the majority ruled against him in 1973, the minority supported the idea that aboriginal title existed, a moral victory that persuaded the federal government to change its stance toward land claims.

Berger was named to the B.C. Supreme Court shortly after arguing the Calder case. At 41, in 1975, he conducted an inquiry into a $6-billion project to put a pipeline down the Mackenzie Valley. He scuttled it.

In 1983, after a squabble with then-prime minister Pierre Trudeau over the inclusion of women and aboriginal people in the Constitution, Berger was reprimanded for his activism by the Canadian Judicial Council. He chose to quit.

Since then, he has practised at the vanguard of native law.

Under the Yukon deal, three First Nations gave up aboriginal rights to traditional territory in the Peel Watershed. In exchange, they received ownership of about three per cent and a voice in the management of public resources.

The process began with a commission that completed a 300-page land-use plan in 2009.

"But the government of Yukon in 2012 decided it would go ahead with its own plan for the Peel very much highly weighted toward resource development," Berger said.

The lower courts set aside Yukon's plan and Yukon now wants to go back to the beginning of the process ,while the First Nations say the report should stand. The Supreme Court reserved its decision.

Maisie died in 1964.

"The fact that we are here now in the Supreme Court of Canada arguing about an elaborate provision in a land claims agreement that will govern the land-use planning in Yukon for the next 50 years shows how far we have come. I think she would be pleased," Berger said.

imulgrew@postmedia.com