If Ottawa was playing its usual game, it should never have made Berger the umpire

Allan Fotheringham May 31 1976

If Ottawa was playing its usual game, it should never have made Berger the umpire

Allan Fotheringham May 31 1976

If Ottawa was playing its usual game, it should never have made Berger the umpire

Allan Fotheringham

The scene in the movie depicts a rugged, casual man, shirt open at the neck, jacket tossed nonchalantly over his arm. He has a solemn, dignified voice. Later, another shot catches him energetically playing baseball under the midnight sun with natives of the Northwest Territories. This is not a movie, as might be expected, showing Charlton Heston at his ponderous worst. It is the short film that opens the Mackenzie Valley pipeline inquiry hearings currently making their way through the major Canadian cities, and the star, in his Technicolor glory, is none other than Mr. Justice Thomas R. Berger of the BC Supreme Court. May Mackenzie King revolve in his diaries.

The thought of the head of a Canadian public inquiry starring in his own movie— before he has even handed in his report— is something that is boggling the traditionalists who normally think of such bodies as smothered in mold and subordinate clauses that make their conclusions obsolete before they are buried in some government pigeonhole. The Canadian psyche has been nurtured on the well-loved stalling tactics of the royal commission and the public inquiry. The Rowell-Sirois commission defined the genre when it started back in 1937 and has kept four decades of political science professors supplied with arguments over federal-provincial taxing powers. The Hall commission on health service allowed Ottawa to delay for a few more years the inevitability of medicare. By the time the Le Dain commission plowed through its hearings, the trendy parents who were worried about their kids had taken up pot on their own. Whatever would the Liberal Party, which has a better sidestep than Guy Lafleur, have done down through the years without this lateral arabesque of public opinion?

Tom Berger, he of the even baseball swing and the phlegmatic face, is setting out to change all this. He is grasping public opinion by the throat while in the very process of his one-man inquiry. He is the most visible investigator since Eliot Ness. “There is as much wisdom in Old Crow as there is in Ottawa, I think,” the judge states in his movie script. He may know what he’s talking about, since he was an MP briefly before he was leader of the pre-Barrett BC NDP. Ottawa may raise its eyebrows over his unorthodox high profile but Ottawa is going to find it very difficult to pigeonhole this report when it arrives.

The Berger tactics—to stir up public reaction and interest in the dilemma of whether energy-hungry southern Canada

should be allowed to rearrange the face of the North—are threefold. Most obvious is his good relations with the press. The Berger staff—lawyers and suchlike—obviously enjoy and understand the press, a phenomenon that gun-shy reporters, accustomed to dealing with the usual myopic bureaucrats and devious politicians, find most flattering. Diana Crosbie, a pert former researcher from Time, is based in Yellowknife and keeps phone lines humming to key people in newspapers and magazines across the country. Ian Ewing, a Toronto film maker, was commissioned with inquiry funds to make the introductory film. A National Film Board crew has been following the judge through the North for its own film of the historic hearings. There is also the convenient fact that a 43-yearold judge is young enough to be able to laugh with the unwashed press and share a beer. Sometimes, in the makeshift arrangements in a remote village, Berger, staff and press must bunk down on the floor of the same log cabin. “You know,” says reporter Nancy Cooper, “the judge even snores judiciously.”

The second factor is the rather unusual act of a commissioner, during the term of his inquiry, making speeches. It was a lowkey locale for the first one, the grad class of the Southern Alberta Institute of Technology in Calgary last September (he did not trust the pipeline companies and their environmental studies to protect the people and their environment because the companies “have an interest in seeing that the pipeline is built”). In November, it was the Association of Canadian Community Colleges in Vancouver (“Maybe we have

at last begun to realize we have something to learn from the races of people who have managed to live for centuries in the North, people who never did seek to change the environment, but, rather, to live in harmony with it”). Then there was the Corry lecture at Queen’s University (“Yet the question persists. Should the character of the North by determined by the South?”). Last month there was a speech to a men’s Canadian Club (the question is whether Canadians are simply driven by technology and wasteful consumption to deplete energy resources wherever and whenever they are found)'.

Most surprising to the hidebound, there on their midnight screens was Mr. Justice Berger submitting to the probing of Peter Gzowski on the CBC’S pilot of a late-night talk show. A government inquiry on an insomniac’s delight? Berger gravely discussing ecology and land claims in the milieu of tightrope walkers and singer J. P. Morgan explaining that she is celibate “because making love is a work of art and I’ve met too many bricklayers.” There’s a grave danger here the public might get interested in his subject.

The final factor is that Berger is in a race with the National Energy Board for public opinion. He is quick to emphasize that the decision on the pipeline will come from cabinet—after it studies Berger’s report and that of the NEB. The fumble when a court decision unfrocked Marshall Crowe as inquiry chairman due to his previous involvement with Canadian Arctic Gas— one of the pipeline applicants—has set the NEB hearings back and Berger may have his report on Ottawa’s desk by Christmas.

Canadian lateral arabesque custom may not recover from the tactics of Berger, who in McLuhanite fashion has changed the North’s perceptions of itself by the way in which he conducted the inquiry. The process, of course, is American in tone. There is the feeling of men who have made their reputations by their publicly acclaimed inquiries—the Kefauver committee, the Ervin committee. Berger, whose next stop, some think, will be as the youngest member of the Supreme Court of Canada, has raised Canada’s consciousness on the issues of the North.

On the Gzowski show, he recalled that F. R. Scott once described the North as

an arena

large as Europe

silent

waiting the contest.

The contest has begun. With a very visible referee.