Berger of the North

He was sent to find out what a pipeline would do to the Mackenzie Valley and its people. In the process, he became a folk hero and a perceived ‘savior’—but can he live up to it?

Judith Timson January 10 1977

Berger of the North

He was sent to find out what a pipeline would do to the Mackenzie Valley and its people. In the process, he became a folk hero and a perceived ‘savior’—but can he live up to it?

Judith Timson January 10 1977

Berger of the North

He was sent to find out what a pipeline would do to the Mackenzie Valley and its people. In the process, he became a folk hero and a perceived ‘savior’—but can he live up to it?

Judith Timson

In the cold, encroaching darkness of a late Ottawa afternoon, he is trying to hail a taxi. One glides up, but as he opens the door to get in, three people push by him and into its warmth. A visitor to the city, and an abysmal failure anyway at getting cabs in rush-hour crowds, he hangs back, then resignedly asks the driver to send another cab around “for Judge Berger.” One of the young men who robbed him of his taxi leans forward from the back seat, excited: “You’re Judge Tom Berger?” and beckons him in, magnanimously offering to share the cab. Delighted to have encountered Berger, he gushes at the judge: “You realize that you’re almost a folk hero?” Then the taxi-robber turned admirer delivers a warning that Tom Berger will remember weeks later and repeat with a smile: “But you better watch out. Canadians always turn on their folk heroes.”

It might be satisfying to end the story here, with some suitable music (Beethoven's Fifth) crashing in the background. But, as it happens, Tom Berger did not disappear into the moody night with visions of disaster looming over him. Instead, as he often does, he simply had the last word. “Give me six more months,” he told the Granger, “and even if you turn on me remember that I may resurrect myself and come back to haunt you.”

Such is the stuff of which 43-year-old national institutions are made. Tom Berger? Only someone who has avoided newspapers, magazines, television news and even the neighborhood bookstore for the past two years could fail to have been confronted with an image of the man: hands in pockets, ample stomach encased in a soft sweater, shuffling along in a native drum dance in far off Fort Franklin, or, suitably pin-striped, banging his gavel from Calgary to Halifax, wresting secret documents from reluctant civil servants, delivering sombre speeches to interested academics, or doing a turn on Peter Gzowski’s late night television talk show.

And if it is odd to realize that this ubiquitous presence is the Hon. Mr. Justice Berger, an austere (by definition, if not demeanor) figure who formerly meted out justice as a member of the British Columbia Supreme Court, it is even more startling that he has been catapulted into our consciousness as the head of a one-man royal commission, an entity that in past

days, despite the importance of whatever subject was being considered, seemed to be an automatic signal for a collective yawn. But Berger’s one-man commission, the Mackenzie Valley Pipeline Inquiry, has been no ordinary commission. Because of its depth, its scope, its impact, it has been a happening.

Set against what were then perceived as the stark realities of the energy crisis, and the knotty question of how Canada would satisfy its energy demands and those of its hungry neighbor, the not-so-friendly giant, by the year 2000, Berger’s flying circus took off in March.1975 to roam the North. It was charged with assessing what the social, environmental and economic impact would be on the Mackenzie River Valley of a proposed pipeline that would funnel natural gas from North America’s Arctic storehouse to hungry southern markets. Two consortia—Canadian Arctic Gas Pipeline Ltd. and Foothills Pipe Lines Ltd.—had made their billion-dollar bids.*

It was a poker game in which the stakes were awesome. While in Ottawa the National Energy Board convened hearings that will ultimately decide the yes or no of building a pipeline, Berger’s inquiry began to amass, for the first time, all manner of information: intricate environmental evidence indicating the possible devastating effect a pipeline would have on the fragile Arctic ecology; thousands of pages of technical evidence supporting the pipeline companies’ claim that more good than harm would befall the North if a pipeline were built; and, most important of all, what Berger himself described as “the voices of the frontier,” predominantly native, heard in remote Northern communities. They told the judge haltingly, through interpreters, how life used to be, how immeasurably important the land is to the native peoples, how frightened they are of “progress,” of having to cope with any more of the changes demanded by an influx of white southerners. Journalist Martin O’Malley, in his book The Past And Future Land, detailing the community hearing segment of the inquiry (when, by dogsled, canoe, as well as more contemporary modes of travel, Berger and his team descended upon 34 remote northern communities to hear evidence in tiny meeting halls, and sometimes by riverside) has presented a gut-wrenching oral history of the North. It is replete with sad descriptions of an ages-old way of life being ravaged by the 20th century. “Boozing, fights, families going down the drain, the strange new stresses coming on the heels of a burgeoning wage economy,” O’Malley wrote. “More traffic, more barges on the river, more explorers, exploiters and bums.”

While this tapestry of past remembrances and future fears was being woven, the drive for settlement of land claims by the Northwest Territories’ 28,000 Indian, Inuit (Eskimo) and Métis came more sharply into focus. Funded by the Berger inquiry,the native voices grew louder with one clear and many confusing demands. The clear one was unequivocal: the demands of the Northwest Territories’ Indians, who have laid claim to 450,000 square miles of the Mackenzie Valley, must be settled before the pipeline project can even be considered.

It is all so monumental and, like the North itself, so unwieldy. As a single con-

*Theproposal by Arctic Gas. a consortium of 16 firms, including seven U.S. oil companies, is for an SA.4 billion pipeline that ultimately would carry both A laskan and Canadian natural gas to southern Canada and into U.S. markets as well. Foothills, an all-Canadian venture, proposes a more limited. $4.9 billion pipeline that would feed Canadian A retie gas into the A Iberta gas pipeline system, with no link to U.S. markets.

cept, the implications of the Berger inquiry resist being wrestled to the ground. But out of the morass of detail comes a conclusion: somewhere in between the dry imperative issued by the federal government to the Berger inquiry, and the hyperbolic triumphs of the media in reporting it, lies the unassailable truth that the Canadian North—an area as large as Europe, as volatile as any Third World country—will never be the same, that royal commissions may never be the same (hear the call already across the country for more “Bergertype” inquiries) and that, indeed. Thomas Rodney Berger will never be the same again. “I have put,” he says quite simply, “everything I have into this.”

And that, coming from a lawyer who once fought passionately for the aboriginal land claims of British Columbia’s Nishga Indians, from a former New Democratic Party politician, once described in the heat of political battle by his opponent Ron Basford (now federal justice minister) as “a man dangerous to the people of BC,” and from a guy who himself said of the establishment: “Eve taken on the bastards

and beaten them,” constitutes a most intriguing statement.

Now. Berger has settled down in the airy study of his Vancouver home to write, in longhand, the two-volume report he expects to deliver to the government by the end of February. Leaving aside the question of what he is going to say. it is enough to ask the somewhat obvious: Who is Tom Berger and what has he done to us? And the not-so-obvious: What have we done to him? And the rather more complex: Why were we so eager to let it all happen? Listen to Georges Erasmus, the young president of the Indian Brotherhood of the Northwest Territories, his voice edged with contempt and frustration: “Canada has such a pathetic need for folk heroes.” It is a marvel that Tom Berger has come through almost two years of being firmly in the public focus with his image unscathed, his inquiry untarnished and the whole process sanctified by the press. The savior of the North, he has been called, the last hope. As “NiWha” (“our judge”), some natives have

claimed him as their own. “The judge will look after us,” they say.

That is some buildup. Even the judge’s mother is worried. A small woman who chooses her words carefullv, she puts together a sentence not unfamiliar to a reporter who has already heard the same concern murmured by pipeline company lawyers, environmental experts and Indian leaders: “1 am very much afraid,” says Nettie Elsie Perle Berger, “that when his report comes out and the government ignores him. the native people will feel he let them down.”

They say it happens all the time. Participants in a long-running inquiry or trial develop a special camaraderie, a feeling of oneness with each other and sometimes a kind of isolation from the outside world. Nowhere is this more apparent than at Yellowknife’s Explorer Hotel, where, in a sense, there is no outside world. You spend a week there, watching the Berger inquiry grind to a close, you walk a few yards from your room to the elevator, from the elevator to the coffee shop, from the coffee shop

to the nearby banquet room where the hearings are held. You nod and smile at familiar faces—the lawyers in their threepiece suits, the native translators, the court reporters, the journalists. Gradually, even the garish broadloom is something to be gazed upon with fondness, as are the plastic-covered lampshades. “The spaceship Berger,” sighs a television researcher, convinced that that is indeed where all the participants have been for the past two years, flying around viewing the North through the eyes of the space vehicle’s captain. The staff of the inquiry have dubbed the exercise “Berger U.” Ánd so, on this Thursday in November, the second last day of the hearings, they come together in front of the judge’s table in the cavernous green-andwhite walled Katamavik Room and pose self-consciously for a graduation picture. There is the judge, wearing the same blue pin-striped suit he wore to open the hearings in this same room, back in 1975 (“Why not? It’s a good suit”). He stands in the middle, beaming, looking for all the world like the proud father of them all.

At this moment it seems difficult to relate this ambience to the pressure-cooker reality of the real North, outside and beyond, where, in economist Pat Carney’s chilling view, fear is everywhere, and “one's words echo like a rifle shot”—especially. of course, if the words are about a pipeline. Carney’s words elicited a quick denial from native leaders. But Carney had already hit home. White Northerners, she said, were feeling disenfranchised by the Berger Inquiry. They were saying that “we don't feel we can stop Tom Berger on the street and give our views. And he doesn’t visit me in my living room.”

But on this day those claims seem remote from the Katamavik Room, although the next day the words of Métis leader Rick Hardy will pierce the complacent atmosphere like pieces of shrapnel when he splits with the Dene Nation—as the NWT Indians proudly call themselves— in recommending that the pipeline be built as soon as possible after land claims are settled. But tomorrow is a day away, and there is Pierre Genest, a lawyer for Arctic Gas, smiling and good-humored. Ask Genest about the judge and he quotes an old adage: “They say if you’re going to get a judge, get a gentleman. If he knows a little law. so much the better.” Berger, says Genest, has been “a perfect judge.”

It is only later in the mellow atmosphere of the hotel dining room, with a few drinks behind them and the prospect of the finish line just a day ahead of them, that some of the lawyers open up to admit that the judge is actually human. It seems he is. well, a bit of a drag. “Eve never stopped feeling uptight around him and I don’t really know why,” says a man who admires him all the same. A bit sedate, they say. “The judge was born aged 43,” was one joke around the table.

Berger himself talks of the necessity of his being “one step removed from the

back-and-forth, to-and-fro points being scored” and admits that his more than two years in the North have been a rather lonely experience. It is interesting that several inquiry participants, while confirming their respect for Tom Berger, still puzzle as to the reverent treatment he has been accorded by the media. “Could it be one time in which the issues have risen above the man?” ponders one of them.

More curious still is the perception by some whites of a strange sort of power possessed by the judge and an absolute denial of it by native leader Erasmus, a 28-yearold former telephone line repairman who worries about what he calls “the mystification of the judge” and the retarding effect that has had on the growth of self-reliance for the Dene Nation. Not that Tom Berger could have changed that, says Erasmus. “He couldn’t do a thing about it.” A white woman who is a writer and a northern resident describes her first encounter with Berger. “I walked into a hearing at Fort Good Hope. I was tired. My body was screaming for sleep. An old woman was droning on, and I wanted to leave the room. Yet I felt there was some power emanating from the judge that kept me rooted to my seat. It was as if he had decided it was his hearing and his primary concern was respect for the natives and he was going to have it. At that moment, he represented all the worst things in my father.” Berger is not the kind of man to admit to possessing such a power, but he will confess with some reluctance to “a sense of inner calm, a serenity about what 1 am doing—and I think this has a calming effect on others.”

For anyone interested in becoming a folk hero, consider the following biography. After frittering away his early years as a comical, sunny sort of fellow, the Victoria-born Tom Berger, son of the RCMP sergeant who married Nettie Elsie Perle, grew serious at the age of seven. He requested and received for Christmas an atlas, from which he compiled population lists of all the countries. “I knew then that he was going to be different,” says his mother, who subsequently became Berger’s bookkeeper when he set up his law practice. “Not many young men would have wanted their mother working for them,” she observes.

As a student at the University of British Columbia, he was a reserved, serious figure who studied hard and had little time for campus social life or student politics. He did find time to work four summers in a sawmill, become a member of the International Woodworkers of America, fall in love and marry his wife. Beverley, who taught him how to play tennis and who is today, at 41, a youthful burst of creative energy and a perfect foil for her husband's seriousness.

By the time he was 29, Berger was the youngest Member of Parliament (for the NDP) that BC had ever sent to Ottawa; and that wasn’t all. He once remarked to Essa

Horswill. whom he hired as a secretary at the time: “Do you know that I’m one of the best young lawyers in Vancouver?” “Hell, he was one of the best young lawyers in Canada,” says his friend, former partner, and protégé of sorts, Don Rosenbloom. “When I graduated from law school, there was no one else in Canada I wanted to work with.” And probably the only bright young lawyer in town, recalls his secretary, who was so absolutely useless about money matters, that he would yell: “Hey, Mom” to his trusty bookkeeper whenever the subject of a retainer came up.

Just as Tom Berger developed an affinity for the problems and rights of native peoples under the tutelage of an outrageous Irish lawyer named Tom Hurley and his wife, Maisie, so did Rosenbloom learn from Berger, who had. he remembers, put together “an awesome strategy” to pilot the aboriginal land claims of the Nishgas through eight years of legal battles. In the end. the claim that the Nishgas had never relinquished title to their land and therefore still owned it was narrowly rejected on appeal to the Supreme Court

of Canada. Nonetheless, that was considered an important moral victory.

The only obvious defeat that Tom Berger ever suffered was in the world of politics, but then Berger confesses today that “I was never comfortable as a politician.” During the 1969 BC election campaign, after only four months as leader of the provincial NDP, he offered the electorate a curious blend of emotional detachment and intellectual intensity. The voters preferred to stick with Social Credit Premier W. A. C. Bennett, whom Berger had called “a pathetic old man clinging desperately to power.” Berger resigned as leader, paving the way for Dave Barrett, a hotter politician who later dethroned Bennett. Tom Berger now professes to be cured of the political itch. When then justice minister John Turner appointed him to the bench in 1971 there was applause all round.

It is ironic that Berger, a failed politician, has taken the political knowledge he accumulated by running for various officesseven times in nineyearsand used it to conduct an almost flawless royal commission. (A popular story around Ottawa last

summer, when the Berger Inquiry held a hearing there, was that Robert Bryce, the former deputy minister of finance currently heading the Royal Commission on the Concentration of Corporate Power, showed up at the hearing for a few public relations pointers.)

One keeps coming back to the idea of an “awesome strategy.” Is there another one in progress here? Or was all that public speaking Tom Berger was doing coast to coast on the necessity of listening to the voices on the frontier just a part of his job? In those rare periods over the past 20 months when he was not holding hearings, he might have been grabbing a few precious moments with his wife and their two teen-age children instead of surfacing in such places as Queen’s University to deliver his message. “It must have been very difficult, but it was absolutely essential,” says an environmental specialist who attended the hearings, convinced, as others are. that Berger has outclassed Ottawa at

its own political game, by making himself so visible that his report will have to be reckoned with.

And yet. there is also the possibility that as a consequence public expectations may now have gotten totally out of hand. For the fundamental fact remains that Berger has no mandate to recommend whether or not a pipeline should be built, but only to discuss its impact, and to recommend the conditions under which it should be built. Three years ago in Ottawa it seemed to be almost a sure thing that a pipeline would be built. Now. after the coming of Berger, it is given only a 50:50 chance. Meanwhile, in an 800-page report. Berger’s staff has put its own conclusions on the record, declaring that native land claims will undeniably be prejudiced if pipeline construction begins before there is a settlement.

One of the lawyers on the Berger inquiry staff has mused that “we’d be better off if he [Berger] never even wrote the final report.” In other words, the process has already accomplished what a dry royal commission report never could. Why complicate matters further? But Berger, perhaps keeping all those heightened expectations in mind, has this to say: “There can be no doubt that by giving the peoples of the North a forum i’ve led them to believe that the things they’ve said will be weighed in the balance. I intend to weigh them in the balance. I make no apologies about that, and moreover I fully expect the government of Canada will take the things I say into account.”

Berger is standing now in his Vancouver office, staring out his sixth-floor window at highrises that were not there two years ago when he began his northern mission, and he is pondering the problem of being perceived as a savior. There is much frowning and many verbal false starts before he will say. flatly: “I am not the savior of the North and I don't think anyone who thinks about it can take that idea very seriously.” He urges me to read Indian leader Georges Erasmus’ testimony before him in Rae last summer, when Erasmus declared: “Some people have said that you are our last hope, and it is true that the inquiry has played an important role in the history of the Dene nation, but 1 think that you are not really our only hope ... it is only we the Dene that can guarantee our future ... you have been with us for over two years now. I think you have entered the Dene nation at a crucial time ... at a time when we have experienced colonization for over 50 years and have begun to reassess the kind of future we want. The inquiry has been a process by which we have been decolonizing ourselves.”

Later on. Erasmus will eloquently explain the problem of the “mystification of Judge Berger.” It seems that it is the white folks who keep creating heroes, demanding that they reveal “the way. the truth and the light.” What keeps happening, continues Erasmus, is “that northern experts are

never native. The colonial mentality encourages an emotional kind of relationship. a certain dependency. Because Berger is a judge, that mystical sense is heightened.” After years of injustice there seems to be a feeling that “this man will do justice.” This kind of dependency, says Erasmus, is exactly what native leaders are working to change.

Back in Vancouver. Berger picks up the thread. The wonders of his inquiry unfolded through the media. The media, he says, and hence the Canadian public, fascinated by the North to begin with, “heard the real concerns of real people and thev were suddenly riveted.” How much more engrossing to hear the life story of the Dene, and the Inuit, to listen to oral history that was as beautiful as any poetry, than to be subjected to the usual media overdose of, say. daily debate in the House of Commons. “All that stuff was and is so ephemeral.” observes Berger. The evidence heard by his inquiry was not. “And I’m the guy sitting there listening.” That the focus was on him. Berger suggests, “would have happened to anyone sitting there.”

You will not hear Tom Berger discuss at any length what this process has done to his ego. although that is a fascinating question. On this matter, and on many others, the judge is unfathomable. There are certain boundaries that you do not cross. It is

not quite that he is frightened of gritty human contact, only that his particular kind of intensity precludes it. One of the few who has made it through' those barriers is a Vancouver lawyer named John Laxton, an old friend, law partner and political crony. He reports back, almost with a sense of wonder, that “I have seen the inside of Tom Berger and it is really very lovely.” And yet Laxton will also point to Berger’s earlier egomania, now somewhat abated, he says, and the fact that Berger has few “really close friends.” That kind of intensity, along with the sense of detachment he has had all his life, makes some people nervous. If Tom Berger is anything, remarks one Vancouver lawyer, “he is a man full of his own mission.”

“If they had been casting about for the perfect job for Tom Berger, they could not have come up with a better one than this,” says Tom Berger. And perhaps that serenity he talks about having may come from the happy conclusion that he is a man who approves of his own destiny. Berger says he is willing to do it all again, maybe in five years “and I’ll even give you the subject.” It seems that he would like to head a commission on the process of aging in Canadian society . We have a problem with that, he says, that the native society does not. As he discovered during his northern sojourn, “they are not ashamed of old age. It is accepted for the wisdom it brings.”

In the Katamavik Room during the last week of the inquiry there were two conflicting moods. One was relief that, after 20 months, it was finally over. The relief showed in Berger; he was clearly glad to be winding it up and heading home to Vancouver where he could temper the task of writing his report with the pleasures of west coast living—a little tennis in the morning, a stroll along the beach, a chance to see family and friends. The other mood in the room was one of tension, a tension that had existed throughout the hearings. After all. nothing less than the future of the North was involved, along with a chance to settle a long-standing debt with the region’s native peoples. There were those who were glad to see Berger go, including David Searle, a white member of the Northwest Territories Council who viewed the inquiry from the beginning with suspicion and disdain. It was time, snapped Searle, for Berger to leave and “take his sickly, motley crew of socialists with him.” Georges Erasmus, anxious to further test the ability of the Dene to stand on their own feet, agreed that it was “a good thing he [ Berger] is leaving.” Berger, not immune to these conflicts, summed up in his slow and solemn way: “There was no consensus when we began and there is no consensus today.” Then, precisely at 1.15 p.m. on that day in November, he declared that “the inquiry stands adjourned. You will be hearing from me.” And now, the next sound we hear may be that of expectations shattering.