Hard Choices: A Life of Tom Berger. By Carolyn Swayze (1987).
Vancouver: Douglas and McIntyre. 237 pp., $24.95 (HC).

Reviewed by David McRobert

During the mid-1970s Tom Berger attained folk hero status in Canadian media, academic and political circles when he headed a federal commission established to examine the possible effects of construction of a pipeline through the Mackenzie Valley on the northern environment and native peoples. The fruits of that commission included a best-selling volume titled Northern Frontier, Northern Homeland and a recommendation that the proposed pipeline be delayed for at least ten years. In the process, Berger changed the course of northern history in Canada. Moreover, his subsequent work, including a stimulating survey on civil liberties in Canada, Fragile Freedoms, suggests that Berger probably will inherit F.R Scott's mantle as Canada's leading human rights advocate.

This new biography is an attempt to chronicle the life of Berger and provide background on the breakthroughs that he has achieved in numerous areas of law and public policy. Swayze, a former law student, met Berger when she was studying at the University of Victoria. While her sense of awe for her former teacher is apparent in Hard Choices, Swayze seems unable to transcend journalistic commentary in most places. In part, this is a reflection of Berger's own reluctance to divulge many of the personal details about his life and work that might have allowed Swayze to capture the essence of her subject more effectively.

Despite these weaknesses, there is much in this book that will interest those who are intrigued by Berger's dedication to justice and minority rights and his unique work on aboriginal rights and environmental issues. Chapters are organized into neat parcels that introduce the reader to Berger's diverse career experiences as a lawyer, politician, royal commissioner, aboriginal rights advocate and writer. At times this approach is not entirely successful and the continuity of Berger's story is sacrificed to Swayze's imposed structure. To this extent the book reflects the inexperience of the author rather than the material at hand.

As a judge Berger pioneered what has now become known as "poverty law" in law school curricula. He defended Indians facing charges for hunting out of season and criminals who faced imprisonment for relatively minor offenses such as theft because they had accumulated a string of minor convictions. He challenged the Workers' Compensation Act in British Columbia and his struggles led to significant changes in a harsh legislation that failed to acknowledge the problem of industrial disease.

Recognizing that more substantial reforms were probably necessary to address many of these problems, Berger became involved in politics in the early 1960s. He was elected MP for a short stint and eventually became a MLA and leader of the B.C. New Democratic Party. After Berger was defeated in 1969 by W.A.C. Bennett (who accused him of being a proponent of Marxian socialism), he resigned his leadership.

In 1971, Berger was offered a position on the B.C. Supreme Court, and despite his youth, decided to accept. It has been suggested that this was a ploy intended to keep Berger out of the hair of the Trudeau Liberals. Whatever the case, Berger proved to be a progressive jurist worthy of his appointment; many of his rulings are still studied in Canadian law schools and, according to Swayze, demonstrated Berger's facility for "abstract cerebral puzzles."

As a judged, Berger became eligible to head up royal commissions on aspects of public policy. His first appointment was Chair of a commission established by the B.C. government to examine family law. His work led to the creation of a Unified Family Court in the South Fraser Judicial District and allowed Berger to reflect his concern about the impact of child adoption practices on native families.

Berger is best known for his work on the Mackenzie Valley Pipeline Inquiry. As a process, the Inquiry served as a crucial precedent in the debate on development in Canada's North and broke important ground in the area of intervenor funding. In addition, Berger provided native peoples and environmental organizations with a forum for voicing their concerns about the massive proposal, and in doing so, presented facts to the Canadian public that persuaded many people the pipeline should not be built. By the time Northern Frontier, Northern Homeland was released in 1977, Berger was regarded by some southern journalists as the "therapist of the north." While Swayze does a competent job in describing this background to the Inquiry, her analysis seems limp and might have benefited from a more careful study of the actual commission documents and the subsequent impact of the inquiry on some other spheres of Canadian public policy.

The most interesting part of the book deals with Berger's challenge to Trudeau over the exclusion of native rights from the initial draft of the Charter of Rights and Freedoms in 1981. Berger's actions and criticisms served to invoke Trudeau's wrath, and as a former civil libertarian, Trudeau suggested that the Judicial Council should discipline a judge who appeared eager to get involved in politics.

Over the next few months, a fascinating drama unfolded. While the Judicial Council did not ask for Berger's removal, it deemed he had been "indiscrete." Berger refused to back down, arguing that a judge should not be prevented from speaking out on a matter of minority rights. However, the pressure continued from Bora Laskin, a friend of Trudeau, and ultimately Berger decided to resign from the B.C. Supreme Court.

Since his resignation Berger has resumed his work as a lawyer and a scholar and he continues to have an important impact on aboriginal rights issues in North America. In 1983 he conducted a commission investigating the Alaskan Native Claims Settlement Act. The report from that commission, titled Village Journey, created a considerable stir in Washington when it was released in 1985. In Canada, Berger has recently grabbed headlines through his advocacy on everything from hunting and trapping rights to land claims.

In the end, I could not help but feel one thing: Berger deserved better. While Swayze makes a good attempt to chronicle Berger's life, much of the richness of his past struggles seem lost. Perhaps the best we can hope for is that Berger himself will fill in the gaps left by Swayze with an autobiographical effort at some time in the near future.

David McRobert is an LLM candidate at Osgoode Hall Law School and a Fellow in the
Faculty of Environmental Studies at York University in Toronto, Ontario.


From: Alternatives, April 1987