Hard Choices: A Life of Tom Berger

A biography of the prominent Canadian lawyer, judge and politician. Tom Berger was counsel for the plaintiffs in Calder v. Attorney-General of British Columbia (1973), in which the Supreme Court first recognized the place of Aboriginal title in Canadian law. The case laid the foundation for virtually all Aboriginal land claim treaties that followed.

Berger’s reputation was sealed by two hard choices in particular. Firstly, because of his work on behalf of Aboriginal peoples, then Prime Minister Pierre Trudeau asked Berger to lead the Mackenzie Valley Pipeline Inquiry (1974-77). On Berger’s recommendations, the Government of Canada rejected the Arctic Gas pipeline proposal, established wilderness parks in the Northern Yukon to protect the Porcupine caribou herd and agreed to a moratorium on major development in the region and the settlement of Aboriginal land claims. In 1977, it was unheard of to rule against economic benefit in favour of Aboriginal peoples and the environment, and the outcome is still considered a landmark victory today.

Secondly, Berger joined the Supreme Court of BC in 1971, the youngest judge appointed to that Court in the 20th century. And in 1983, he resigned his seat over the reversal of the decision to include Aboriginal rights in Trudeau’s repatriated Constitution.