It is given to some of us to be, effectively, the drivers of a paradigm shift that is barely visible to most of the rest. And it is mostly discernible after the fact, because paradigm shifts tend to be controversial as the old and the new collide.
Tom Berger was one of those paradigm shifters, catching and surfing a wave that may have seemed more like a ripple when it began in the early 1970s as Dene began to meet together and share stories. Some of the story sharers were people who had been young when Treaty 11 – the last of the Canadian government’s treaties with First Nations – was signed in the North in 1921. And they talked about what was understood, not just the English words on a paper.
At least that is what I imagine happened, because I don’t remember ever hearing about how the Mackenzie Valley chiefs’ application for a caveat wound up before Judge Bill Morrow of the NWT Supreme Court in 1973. I was a new journalist in the NWT then, and I picked up on the sense of tension between two world views – the Canadian government view that had created the NWT Council in 1921 and given it power as a territorial administration, even if it was run from Ottawa for many years, and the Dene view that First Nations people had never given up their rights to the land on which they lived, no matter what treaties might say. But I didn’t fully grasp the nature of the paradigm shift that was underway. Tom Berger did.
I travelled a few times on the court plane with Bill Morrow, who was a big man – physically as well as metaphorically. I remember the first time I was ever on the plane. He said, very directly, if you ever report anything you hear on this plane, you will never travel with us again. And I never did report on what I heard. But I do remember my sense of the conversations I did hear. It seemed clear to me that Judge Morrow saw himself as a check on the rather unlimited bureaucratic powers of Stu Hodgson, the NWT commissioner.
And so he agreed to hear the caveat case, and to do so, he did very much what Tom Berger did – he travelled to the communities and listened to what people had to say. And mostly what they had to say was that the treaty was a treaty of friendship, not a land surrender agreement. He ruled in favour of the caveat claim but it was overturned by the Supreme Court of Canada. It would have totally changed First Nations and Canadian government relationships.
Tom Berger understood that, I think. He had used the law in similar ways, to assert indigenous rights at a time when its implications were not at all understood. And when he was appointed to head the Mackenzie Valley Pipeline Inquiry in 1974, he took a similar approach. There were formal hearings in the Explorer Hotel in Yellowknife at which the technical aspects of the pipeline proposal were discussed and debated. And then there were community hearings, all over the NWT, at which people spoke about their views of the land, and the pipeline proposal. They got heated at times. Who can forget the hearing in Fort Good Hope where chief Frank T’seleie called the pipeline proposers modern day Custers?
I had arrived in Yellowknife just before the community hearings were scheduled in Fort Simpson, Jean Marie River and Wrigley. I was on holiday from my job in Toronto, and visiting Peter Gorrie, then editor of News of the North, who I had met at Carleton University when I studied journalism there. Peter was facing that kind of typical problem faced by a small newsroom – he had a prior commitment and his two reporters both were busy. But these hearings were a big deal; as the territorial paper of record, News of the North had to be there.
So he asked me if I would do him a favour and cover the hearings for the paper. I was scheduled to go back to Toronto, work one day, and then have five days off. History was calling, so a friend called in to say I was sick, and I hopped on a Wardair Twin Otter to go to Fort Simpson.
I was so new to the north that I didn’t realize at first that I was sitting in the seat right behind Tom Berger. What I do remember, vividly, is the sense that history was unfolding in front of me – that this was, in many senses, part of a bigger process of re-negotiating the relationship between Canada and First Nations.
The Fort Simpson hearing ended up being two hearings, because there were two points of view in that community. There was a faction that wanted the kind of development that the proposed pipeline would bring – in essence, the kind of approach that government had been following since 1921, when oil was discovered at Norman Wells and the NWT Council was hastily assembled as an intergovernmental co-ordinating body to deal with the fear that the oil discovery would bring a flood of incomers to the north.
And then there was the view that it was time to recognize aboriginal title, with all that would bring in terms of language and culture. I remember Rene Lamothe being particularly eloquent about what happens when children are taught in their first language, rather than English. But what that title would look like, and how it would be exercised, those were still rather nebulous concepts that in effect we are all still working out.
It was in Jean Marie River that I fell in love with the North, and decided that I couldn’t live in Toronto any more. And so I became, like many others, a person attracted to the changing paradigm of the north. I lived in the NWT for the next quarter century, seeing so many changes flow as the paradigm shift continued.
One of Tom Berger’s gifts, looking at things in retrospect, is that he understood that in a time of paradigm change, it is not helpful to come down in favour of one side or the other. The challenge of paradigm change is that it calls for a new blend, a new perspective – a way of bringing things together that may seem opposed.
And that is what he did. His report put both perspectives on an equal footing. The government needed to settle the claims of First Nations people before development could proceed, he said. It was very much what Bill Morrow had said before him.
That is, of course, what eventually happened, through a series of agreements between the Canadian government and various First Nations groups in the NWT which led to much community-based economic development and eventually, the division of the NWT into two territories.
But the paradigm shift is still underway – what does indigenous governance mean? What does it look like? How does it change the relationship between government and First Nations? Those are the questions that the Dene, Bill Morrow, and Tom Berger helped to crystallize for us all – and those discussions began in the NWT.
It is all history now, but those of us who were there have our own memories of the time and the place and of Tom Berger, who was a genuinely good, kind and perceptive man. A man of his times – and a man far beyond his times. Rest in peace, Judge Berger.