‘You can’t discuss the history of the North without the history of land claims,” says Thomas Berger.
He should know. After all, it’s hard to talk about the history of aboriginal rights without discussing Berger, who helped start it all.
In the early 1960s, as a feisty young lawyer representing the Nisga’a Nation of British Columbia, Berger helped establish aboriginal rights in Canadian law.
He went on to become the youngest judge, at 38, to be appointed to BC’s Supreme Court during the 20th century. From there, Berger became famous for his leap from the bench to the bush plane, when he embarked, in the mid-1970s, on a tour of the Yukon and Northwest Territories to prepare his report on the McKenzie Valley Pipeline project.
His recommendations put the kibosh on plans to run a pipeline across northern Yukon and led to the establishment of two parks at the tip of the territory.
In 1981, Berger led a successful push to have aboriginal rights entrenched in Canada’s constitution. He resigned in 1983, but Berger has continued to champion First Nations’ causes and the land-claims movement.
That’s what took him to Whitehorse this week, where he spoke Wednesday evening during a meeting organized by the Conference Board of Canada on land-use planning.
Yukon’s planning bodies are just one of many products of the land claims that have been settled in the territory.
Now 77, Berger is humble enough to call himself a “historical artifact,” and to note he’s just one of many figures who helped persuade Pierre Trudeau to acknowledge aboriginal rights.
Chief among them is Yukon’s Elijah Smith, who led a delegation to Ottawa in 1973. “I think he should be remembered,” Berger said during an interview.
It was also in 1973 that Berger persuaded the Supreme Court of Canada to recognize that aboriginal rights to land did exist.
When Berger attended law school in the 1950s, Canada’s First Nation people didn’t even have the right to vote. That came in 1960.
There were no courses to take in aboriginal rights, because such a field did not yet exist.
“They’ve achieved a great deal, I think, if you go back to the ‘60s,” he said. “Think of how far things have come since then.”
But with great hopes come great disappointments. Most of Yukon’s land claims may be settled, but many of the territory’s First Nation people remain poor, trailing the national average in employment, education and life expectancy.
First Nation governments struggle to staff their offices and, some complain, they are rife with nepotism.
“There were bound to be disappointments,” said Berger. “It’s like electing Barack Obama. The world didn’t suddenly change overnight. It means a lot of tasks that had been neglected can now be undertaken.”
He brushes off the cynical suggestion that land claims have benefitted lawyers more than First Nation people.
“Lawyers are blamed for everything,” he said, “so why not blame them for land-claim settlements?”
Many changes are slow. Take the McKenzie Valley Pipeline. Thirty-three years after Berger released his report on the project, the pipeline has yet to proceed – although it could do so shortly, depending on the outcome of a National Energy Board decision, due in September.
The project still has naysayers.
The Dehcho First Nations aim to block the project until their land-claim negotiations are complete.
But the pipeline is no longer proposed to run through the calving grounds of the Porcupine caribou herd, as was originally planned. And, “If it goes ahead, aboriginal people will have one-third ownership of the pipeline,” said Berger.
A major selling point of land-claim agreements was that they would offer certainty to governments and companies planning to develop on First Nation land. But this no longer appears to be true.
Vague provisions in land-claim agreements have a tendency to take on expansive meanings as time passes. The duty to consult is one. First Nations insist it gives them veto over various projects on their land, while governments maintain it only requires a courtesy call to aboriginal leaders.
The Supreme Court of Canada is currently chewing over just how broad this duty is, in a precedent-setting case involving the Little Salmon/Carmacks First Nation.
“Working out the relationship between aboriginal people and the rest of us is going to take a while,” said Berger. “It resembles relations between Canada and Quebec. You cannot put your pen down and say, ‘It’s done.’”
When the founding fathers of the United States signed their constitution in 1789, “they overlooked some things, such as outlawing slaves,” Berger drily noted. “They’ve spent 200 years arguing about their constitution, and they had a civil war about it.”
Likewise, since the introduction of Canada’s constitution and charter of rights in 1982, “We’ve never stopped arguing about what that means.
“That’s usually what happens with the most important things.”
In Berger’s mind, aboriginal rights isn’t just a question of justice. It’s also Canada’s “intellectual contribution to the world.”
“These are worthwhile tasks,” he said. “I think we need to keep working at it.”
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