'I stood beside a legend': Yukon First Nations, environmentalists pay respects to Thomas Berger

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Thomas Berger at the Supreme Court of Canada in Ottawa. Berger died on Wednesday at age 88. (Cheryl Kawaja/CBC - image credit)
Thomas Berger at the Supreme Court of Canada in Ottawa. Berger died on Wednesday at age 88. (Cheryl Kawaja/CBC - image credit)

Humble, an active listener, a "legal scalpel" — these are but a few of the ways First Nations leaders and environmentalists in Yukon are remembering the late Thomas Berger.

Berger died at age 88 on Wednesday after a battle with cancer.

Berger's work spans the North and British Columbia — work First Nations leaders say helped advance Indigenous land claims and the rights therein. He was a former judge for the B.C. Supreme Court, an NDP politician and a lawyer.

In Yukon, he is perhaps most well-known for representing First Nations and environmental organizations in their fight to protect the Peel watershed, a vast expanse of wilderness in northeastern Yukon with important cultural and ecological ties, along with leading an inquiry in the 1970s into a pipeline project in the Mackenzie Valley, which Berger recommended to be delayed.

'Staunch, steadfast' advocate of First Nations rights

"The Berger Inquiry is still something that is spoken about in our community today," said Dana Tizya-Tramm, chief of Vuntut Gwitchin First Nation. "It was sort of a lightning rod for First Nations exerting their pre-existing rights as well, and I think it laid a real foundation and [broke] a lot of trail that assisted in some of the thinking around our self-government agreements."

"I stood beside a legend in Canada," Tizya-Tramm added. "I stood beside one of the earliest and staunch, steadfast advocates of First Nations rights. He also helped me see how the rest of the country really benefits from this."

Roberta Joseph, the chief of Trʼondëk Hwëchʼin, said she attended Mackenzie Valley pipeline hearings as a teenager, adding that what Berger was doing around that time was different.

"Even though way back then, consultation wasn't a really strong process as it is today, he was able to provide a strong voice for the North," Joseph said.

Many sentiments have poured in about Berger's sharp legal sense that was tempered by modesty, which disarmed any air of pretension.

"He had this authority from his real gentle knowledge and was not someone who would pound his fists on the table, almost as if he knew we had already won from the moment that we approached these issues," Tizya-Tramm said.

A decisive role in dispute over the Peel watershed

In 2012, the former Yukon government wanted to pry open most of the Peel watershed to industrial development. This was met with stiff opposition from First Nations and environmentalists, to the degree that they launched a lawsuit that landed in front of the Supreme Court of Canada in 2017. Berger represented them.

The Yukon chapter of the Canadian Parks and Wilderness Society was one of the environmental groups involved in the case.

Executive Director Chris Rider attended the supreme court hearings. He said the Yukon government was represented by a polished, big-wheel lawyer from Toronto.

But that didn't really matter, Rider said.

"Tom got up and he has this style about him that's again a little bit like Columbo and I was just like, 'I'm not sure where he's going. Are we going to lose this?' I don't know why I had that moment of doubt because the longer he went on the more he brought it all together in this really incredible way and the more you could see he had the supreme court justices wrapped around his little finger," he said.

"You could just tell you were watching a master at work."

The court ruled in favour of First Nations and environmentalists, declaring that the government failed to consider a 2011 plan recommending most of the watershed be protected and,in drafting its own plan, effectively ignored the land use planning process encapsulated in the Umbrella Final Agreement.

"He listened," said Lewis Rifkind, mining analyst with the Yukon Conservation Society, "and he took people's visions, concerns, their ideas regarding the Peel watershed plan and he managed to gather them together in his own mind into something bigger than all of us together and he could then articulate that in the legal circles to ensure that the Peel was protected.

"He was amazing in that sense."

As of 2019, when the Peel land use plan was signed, most of the watershed had some level of protection — and that's for a region that encompasses more than 67,000 square kilometres.

"It's the largest continuous-boundary protected landmass in the world, and I think that, as time continues, Canadians will look towards this incredible landmass and be proud about where our country's priorities are," Tizya-Tramm said.

"I am staggered to think about how much knowledge has left with Mr. Berger, but also what a legacy that our children will inherit."