Thomas R. Berger
My relationship with the Nisga’a goes back… to the early 1960s which is a long time ago, but that relationship is one I treasure and indeed I proudly bear a Nisga’a name, Halaydim Xhlaawait, and I hope that relationship will continue for a long time to come.
I want to talk about the Calder case. That is the case the Nisga’a fought back in the 1960s when they sought to establish their Aboriginal title to the Nass Valley. I was a lot younger then than I am now; indeed I was just a young lawyer. Frank Calder and the four chiefs of the four Nisga’a villages on the Nass River came to see me in Vancouver. I had a very small law office, a secretary, and my widowed mother worked for me as well. My recollection is that when the four chiefs came in we didn’t have enough chairs for all of them!
You may be saying to yourselves, well why did the Nisga’a go to this young lawyer? I had no reputation, no background. Just let me tell you why.
I started out in the field of criminal law doing defence work. I often consulted an older lawyer named Tom Hurley who then was about the age I am now – let’s just say late 70s and not be too specific about it. He was a lovely old gentleman and he always wore a three-piece suit, he always smoked and always had ashes all over his vest. He had a little office, but though he argued some of the most important cases in criminal law in Canada’s history, he was quite unassuming and I do not think he ever made very much money in law. I would go down to his office and ask him about my cases and he was always very generous with his time, but he was a man that liked to take a drink and he would say, “Well, Tom, why don’t we go over to the Olympic Hotel and talk about this?” That’s when they had beer parlours in the old days and you could sit around and drink beer and that was always agreeable to me. We would step out of his office, but his wife worked in the office opposite and her name was Maisie and she was a great champion of the Indian people of British Columbia. And in those days they did not have many champions. She was the publisher of The Native Voice, a publication for First Nations people that is still in business in British Columbia. She went around collecting money for various causes to serve the Indian people of British Columbia. She was a formidable lady; she was tall, wore a quilted black dress and horn-rimmed eye-glasses, her hair was back in a tight bun and she had a cane that she was willing to swing…
Anyway, Mr. Hurley and I were leaving his office to go the beer parlour — she objected to his drinking. She came out of her office and said, “Tom Hurley, where are you going?” He said, “Oh, just stepping out with Mr. Berger for a conference, my love.” And she said, “I know where you’re going, you’re going the beer parlour.’ His response was, “How can you say such a thing, my love?”
Well, Mr. Hurley and I kept scuttling toward the door as this conversation went on. Anyway, she said she knew where we were going and came after us. But we got out the door and I still remember her cane smacking against the door on the other side as we left. We hurried down to the elevator, and as we got into the elevator, Tom Hurley mopped his brow and turned to me and said, “Didn’t I tell her!”
Mr. Hurley died about a month later of a heart attack and Mrs. Hurley did not waste a moment. She came into my office a few days later, stood in front of my desk, smacked her cane down towards me and said, “Now Tommy, you will have to represent the Indians.” So, in that way life’s choices are made for you; it was a choice I am always happy that Mrs. Hurley forced me to make.
The first case she brought to me involved two Indian men, young men, who had been hunting allegedly out of season in breach of the B.C. Game Act. This was in Nanaimo, and after she brought the case1 to me we took it all the way to the Supreme Court of Canada and won in 1965, establishing their right under an old and forgotten treaty to hunt in southern Vancouver Island. But, we also raised a question of Aboriginal rights; the Crown said they didn’t have a right to hunt, that their old treaty signed with Governor Douglas could not be upheld. All right then, we argued, if there was no treaty then they had never given up their Aboriginal right to hunt, and they had a right as Aboriginal people to hunt independently of any treaty right. The Supreme Court of Canada upheld the treaty. But we had kind of opened the door a little bit to the discussion of Aboriginal rights in the courts and that, of course, was the reason Frank Calder and the Nisga’a chiefs came to see me.
In the mid-1960s, we started the lawsuit that bears Frank Calder’s name. The case went to trial in 1969. I should tell you that we had meetings, Frank Calder and I, with other First Nations people in the province, all of whom objected to this lawsuit being brought. They said, “You are going to lose and then we will have lost forever”, but the Nisga’a, guided as they always have been by statesmen, said “No. We believe in our own history, we’re going ahead.” And just before we went to trial Prime Minister Trudeau was asked in Vancouver about claims to Aboriginal title and he said, “Well, our answer is no” — this is the Prime Minister of Canada speaking — “We can’t recognize Aboriginal title because no society can be built on historical might-have-beens.” He swept the whole question of Aboriginal title into the dust bin of history.
Well, the trial proceeded. The Crown admitted that the Nisga’a had used and occupied the Nass Valley for thousands of years — since time immemorial. Frank Calder and the four chiefs testified. An anthropologist named Wilson Duff testified; he was the first anthropologist to testify in these cases. Some of you familiar with Aboriginal rights litigation in recent years will be astounded to know that the trial took one week and all the issues were canvassed. We made our argument and we lost. The judge said, “I think you should appeal this. I accept all of this evidence, but nobody has ever claimed Aboriginal title in this century and you should take it to a higher court.”
Now, let me just say that the concept of Aboriginal title was not just something that smart lawyers had thought up. It is true that it had been sleeping for a century in the law books, but it had not been forgotten by the Nisga’a because in 1887, there was a Royal Commission in British Columbia that travelled to the Nass Valley. Reserves had been allotted in those days, but no treaties made. When a royal commission (the provincial government appointed a royal commission “to look into the condition of the Indians of the Northwest”) visited the Nass Valley, the Nisga’a raised the question of Aboriginal title. David McKay, one of the Nisga’a chiefs, spoke for the Nisga’a. Now, this is 126 years ago:
What we don’t like about the government is their saying this: ‘We will give you this much land.’ [that is the reserve] How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land — our own land. [Our] chiefs do not talk foolishly, they know the land is their own. Our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, and places where they got their berries; it has always been so…it has been ours for thousands of years.
You will recall that in the Haida case in 2004, Chief Justice McLachlin for the Supreme Court of Canada pointed out that the Aboriginal peoples of Canada had never been conquered…
The Nisga’a continued to assert their Aboriginal title and another royal commission2 went to Northern B.C., this time in 1915, and Gideon Minesque spoke for the Nisga’a. 1915, now I think that is 98 years ago, and at that time he said,
We haven’t got any ill feelings in our hearts, but we are just waiting for this thing to be settled… It is not only a short time that we have lived here; we have been living here from time immemorial – it has been handed down from legends from the old people and that is what hurts us very much because the White people have come along and taken this land away from us… We have heard that some White men… said that the [Nisga’a] must be dreaming when they say they own the land upon which they live. It is not a dream – we are certain that the land belongs to us. Right up to this day the government never made any treaty, not even to our grandfathers or our great grandfathers.
And, of course, that belief among the Nisga’a held firm for all of those years, and it led Frank Calder and the four chiefs to come and see me in the 1960s. Now, I said we lost at trial and an appeal to the B.C. Court of Appeal, and that is not really surprising. I went to law school in the mid-1950s and we never studied Aboriginal rights. It never occurred to our teachers or to us that the people who lived all around us, from whom we had taken the country, had rights – legal rights, constitutional rights. Judges in those days had never been trained in the field of Aboriginal rights so it was difficult to convince them that the Aboriginal peoples possessed rights based on the indisputable fact that they used and occupied vast areas, if not the whole of this continent, before the Europeans came. They had their own institutions, their own laws, but of this fact many lawyers and judges remained unaware. They could not accept that people without an extensive written language would have an elaborate legal system. And as for their Aboriginal title, how could the court acknowledge it? It was ill-defined, it was not recorded in the system of title deeds and land registration; most importantly, it was not usually a form of private property, but often was communal.
Well, we went to the Supreme Court of Canada and there were some outstanding judges there in those days. Of course, the Supreme Court of Canada is the last stop on the judicial railway and the judges there know that there is no appeal after they deal with a case; they are speaking to history. In our case, we went down to Ottawa to argue the case. Frank Calder and the Chiefs of the four villages together with the Elders travelled to Ottawa for the hearing and theirs was a grave, respectful and poignant presence. They represented there, in a sense, the Aboriginal peoples of Canada whose interests the judges, for the first time in the 20th century, would have to confront. And if there was a fighting chance of obtaining justice, we felt, it was here, where the judges know they will make or unmake history.
We argued the case before the Supreme Court in 1971. The judgement came down in 1973 and six of the seven judges decided that Aboriginal title was part of the common law, part of Canadian law. They divided three to three over the question of whether Aboriginal title had been extinguished in British Columbia. The view that was to prevail was that of Justice Emmett Hall who discussed in his judgement the importance for the judges to rise above their cultural biases. After considering the evidence in a very lengthy judgement he said, “What emerges from the…evidence is that the Nisga’a in fact are and were from time immemorial a distinctive people with concepts of ownership indigenous to their culture and capable of articulation under the common law.” He concluded, “[The Nisga’a have the] right to possession of the lands delineated… and their right to enjoy the fruits of the soil, of the forest, and of the rivers and streams within the boundaries of these lands has not been extinguished by the [Crown].”3
So, that was a turning point because, of course, it led the federal government to agree to negotiate with the Nisga’a. Within a few months, on the advice of their principal legal advisor in these matters, Gerard LaForest, who later became a judge at the Supreme Court of Canada, they decided that Justice Emmett Hall, in the passages I have just read you, represented the sound view of the law. The Prime Minister, Mr. Trudeau, who had dismissed the Nisga’a case just a few years before, said that Canada had to negotiate comprehensive claims with all of the Aboriginal peoples of Canada where their Aboriginal title had not been surrendered.
And, of course, it was not only the decision of the Supreme Court that brought about this immense change. Aboriginal people all over the country had begun to make the case in their own way for acceptance of the idea of Aboriginal title. In fact, Elijah Smith, a chief from the Yukon, led a delegation of Yukon First Nations people that met with Mr. Trudeau just a few days after the judgement in the Calder case came down.
Now, since that time, under the heading of comprehensive claims, we have the 24 land claims agreements represented by you folks sitting here today. It began with the James Bay and Northern Quebec Agreement in 1975 and we have seen claims settled in the Northwest Territories, Nunavut, Yukon, Newfoundland and Labrador, Nunavik and now three more from British Columbia: the Sliammon, the Tsawwassen and the Maa-nulth.
It was at that point that I was appointed a judge by the federal government to the Supreme Court of British Columbia so I vanished into the judicial woodwork for about twelve years; though some of you from the Mackenzie Valley and the western Arctic remember that during that time I was appointed the head of the Mackenzie Valley Pipeline Inquiry, which took me to your neighbourhood for about three years.
While I was a judge, my wife, Beverley, was a counsellor to the Native Indian Teacher Education Program at the University of British Columbia. It was a program run by a very well-known Indian educator, Verna Kirkness, from Manitoba, whom some of you I am sure know. Anyway, we lived near the university and most of these Aboriginal students struggling to become teachers were women, and they used our livingroom as a kind of home away from home. They were often there. I was working upstairs one day and I heard a lot of laughter downstairs. When I came down I said, “Well, what was that all about?” and my wife said, “Well, the students are going to occupy the offices of Indian Affairs downtown tonight and they are going to stay there overnight, to protest the reduction in the money being made available for First Nations university students.” And she added, “Well, they have to cook breakfast and maybe lunch so I gave them our electric frying pan.”
The next day I went to work at the courthouse and I got a call from the Chief Justice who said, “Tom, the Department of Justice is coming overhere and they are going to apply for an injunction against some Indian women who have occupied the department’s offices. Would you hear the case?”
I said, “Well, Chief Justice, I think I may have a conflict of interest. As we speak, I believe our frying pan is being held hostage!”
Anyway, in the meantime the Nisga’a negotiations proceeded with the federal government and in due course the province joined those negotiations. They took a long time because Canada agreed to negotiate in 1973 and the Nisga’a treaty was signed in 2000. It was my observation that the Nisga’a leaders had a deep concern for the future of their people. They were conscious of, but not pre-occupied with, the grievances of the past. They had no interest in representing themselves or being characterized as victims and they always maintained their sense of humour. They could not have made it through if they had not. They were not negotiating merely a land claim – and this I am sure is true of all the land claims that you folks here tonight have negotiated – but the future of their people. They were engaged in redefining the relationship between the Nisga’a and the dominant Canadian society. That was what was always at stake and what remained at stake through the negotiations.
Well, the Nisga’a negotiations were completed in the year 2000 and when the treaty went through there was a flurry of litigation as Gordon Campbell, then the leader of the opposition in British Columbia, sought an injunction to prevent the treaty coming into force. Various other groups sued and the last of those challenges was only disposed of on February 5th, three weeks ago, when Jim Aldridge persuaded the B.C. Court of Appeal to dismiss the Robinson case.4
Now, I think these modern treaties are a remarkable achievement. I do not pretend to have read them all and comprehend them all, but I have been able to observe what I say is a remarkable achievement. They have protected traditional rights of hunting, fishing, and trapping which were always in jeopardy in these non-treaty areas. For people in the Arctic and Subarctic and in many other parts of the country, hunting, fishing, and trapping are still an important part of their way of life. Even those who no longer pursue these activities for their living still want to retain that historic connection with the land.
Under those land claims agreements, under those modern treaties, First Nations and the Inuit have established parks and wilderness areas. The Nisga’a treaty establishes the Lava Bed Provincial 4 Robinson v. A.G. Canada, British Columbia and the Nisga’a Nation Park. In the Northern Yukon, two wilderness parks have been established under land claims agreements. There is the Ivvavik Park established by the Inuvialuit Agreement in 1984, which is in the coastal section of the Yukon where it meets the Arctic Ocean. Just south of that, the Vuntut wilderness area is a park established under the Gwich’in Final Agreement in 1995. I know that in the Mackenzie Valley the Deh Cho have not yet signed a final agreement, but they have been negotiating with the federal government for a long time and through those negotiations they have achieved a major objective, that is, they have obtained the agreement of the federal government to increase the size of Nahanni National Park seven- fold and that park is now four times the area of Prince Edward Island. Prime Minister Harper, who presided at the signing of the agreement, said this is the most important act of environmental protection in a generation.
Then, of course, these land claims agreements establish new institutions. The Nunavut Land Claims Agreement of 1993 established the institutions of public government, the water board, the impact review board, the planning commission and so on. The Nunavut Land Claims Agreement of 1993 also established a new government, the government of Nunavut, which started to operate in 1999.
I should just pause here. I am giving you a recital of things that I think the people in this room or the generations before them — the generation before you or the generation before that — have achieved, but I know that there are promises that have not been kept, provisions that have not been implemented. When I went to Nunavut as mediator in 2006 I looked into the famous article 23 of the Nunavut Land Claims Agreement, which famously contains an important promise regarding employment and, I think, education as well, that has not been kept. But there are things you can do. Recently, Nunavut Tunngavik Incorporated won a very important case in the courts obtaining damages against the federal government for their failure to live up to the terms of article 23. The fight is not over, but it is an important fight that will continue.
The Nunavut Land Claims Agreement also contains a provision that may well be unique in modern treaties. It acknowledges the contribution that the Inuit have made to Canada’s claim to Arctic sovereignty and it specifically acknowledges the contribution of the Inuit and acknowledges their contribution to Canadian history and I think that is very important.
Now…some of you are new enough to these gatherings that I hope some of the things I am saying come to you as something you have not heardbefore. You can take it from me that I know what I am talking about; although that was not always the case. When I first became a judge, I was still in my 30s and my father who had been in the RCMP on the prairies in the old days spoke to me when I became a judge and said, “Now Tom, I know you went to law school and graduated and you have read a lot of law books, but there are some things that judges do not know. There is a lot of wisdom out there on the farm and on the street and in the bush, and judges should be aware of it.” And he told me a story about a new judge on the prairies in the old days who was hearing a case in a small town; it was a case of a young man in the town who had been charged with stealing a horse. The case came before the judge, he tried it with 12 prairie farmers and the evidence was pretty strong. It looked as if the young man had stolen the horse. The judge summed up the evidence and he sent the jury out. They realized the evidence was pretty strong, but they thought this was a young man whose record should not be blemished by a conviction for a crime. So, they came back with their verdict. The judge said, “Have you reached a verdict Mr. Foreman and members of the jury?” The foreman said, “Yes. Your Honour, we find the defendant not guilty, but we think he should give the horse back.”
Well, the judge, a new judge preening himself on his knowledge of the law, said in a patronizing way, “Well Mr. Foreman and members of the jury, that is what in law we call an inconsistent verdict. I will have to ask you to go back to the jury room and reconsider your verdict.” So, away they went and soon they came back. The judge said, “Have you reached a verdict?” — “Yes, we have.” The foreman said, “Well, we find the defendant not guilty and we have decided that he can keep the horse!”
Well, I have learned a lot since those days, so let me just mention one or two other things. These land claims agreements are remarkable in that they provide the whole basis — I do not pretend to know all of them, but I am sure this is true of all of those in the Northern regions, in the Arctic and Subarctic — they provide the whole basis for land use planning in that great land mass because, of course, these 24 land claims agreements that you folks have signed cover one-half of the land mass of Canada and these agreements provide the whole basis, legal and constitutional, for land use planning in these areas. In fact, the auditor general in her report in 2011 pointed out that in the Northwest Territories, where you had land claims agreements that had been signed, you had institutions established for land use planning involving local control that were far ahead of any measures the federal government or the government of the Northwest Territories had taken on its own to develop land use planning in those areas where there were as of yet no land claims agreements.
Let me give you another example of this. In the Yukon, the Umbrella Final Agreement was signed in 1993, providing the basis for the 11 final agreements that have been reached with First Nations in the Yukon. The Umbrella Final Agreement provides for a series of land use planning commissions jointly established by First Nations and the Yukon government that will over a period of years develop land use plans for thewhole territory. One of those commissions completed its work a few years ago covering the Northern part of the Yukon. The Yukon government, First Nations of the Yukon, and the people of the Yukon are now considering the report of the second of those planning commissions dealing with a vast area called the Peel Watershed. If the proposals of the regional land use planning commission jointly established by First Nations and the Yukon government are carried out, it will become the largest protected area in North America. It is not all protected — provision is made for industrial development — but, of course, this is where the lines are often drawn. If you are engaged in land use planning, what land is to be preserved for parks, for habitat, for the caribou and snow geese, the marine mammals and fishery and so on? Those are tough decisions and in the Yukon. In the first instance, they have set up these land use planning commissions to deal with each area as they go along. It will take many years, but isn’t that the rational way to deal with these vast territories; to sit down and work it out over a period of years?
Now, because I know your conference is dealing with promises that are not kept, it is only right to point out that in the Peel Watershed, the First Nations involved are engaged in a struggle to persuade the Yukon government to live up to the recommendations that the land use planning commission has advanced for the Peel.
But in the main these land claims agreements have made the Aboriginal people major land owners; significant players in the economy, local and regional.
I think I have demonstrated that these modern treaties have altered the political, social, environmental, and cultural landscape as well as the legal and constitutional landscape of Canada. As Aboriginal people over the last 40 years have sought to establish their Aboriginal title, they have also sought and obtained constitutional guarantees for their Aboriginal and treaty rights. Under section 35 of the Constitution adopted in 1982, the rights that Aboriginal people have established and that are written into these land claims agreements, these modern treaties, are protected by the Constitution. That means all of these land claims agreements are constitutional instruments. They are, in a sense, part of the Constitution of Canada. That is an important and far-reaching development that you should keep in mind because there are opportunities from timeto- time before the courts to take advantage of the constitutional status of those promises written in to these land claims agreements.
Now, I realize that some of the promises that have been made have not been kept and I am sure everybody in this room, if they cornered me after this event, could each of them tell me something that has not been implemented — a promise that has not been kept. Of course it is true that often the representatives of the Crown seem to have forgotten the idea at the heart of these land claims agreements — that they are intended to established a new relationship, to bring about reconciliation not just in the short term, but in the long term. I know, if I may say so, looking back forty years and more — because I look back to a landscape in the 1960s when Frank Calder knocked on my door, a day when there were no land claims agreements. There were occasional statements by Aboriginal leaders about Aboriginal title, but these were regarded, as the Prime Minister of the day said at the time, as historical might-have-beens. And, so, I know looking back, that you will come through; I know you can complete the work that you set out to do.
Those historical might-have-beens, as they were once described, have instead become important milestones in Canadian history. You know, if you take a poll of Canadians and ask what makes us distinctly Canadian, they’ll say Confederation and the union of English and French-speaking people, the building of the railway, the extension of Canada from sea to sea to sea, and the courage of Canada’s soldiers in WW I and WW II (and it is to be remembered that an important contribution was made in both of those wars by soldiers from Aboriginal villages all over Canada). Then people say, well there is Medicare, the Charter of Rights and so on. All of that is true, but I think that this process of settling land claims, which is still unfolding, a process that you are leading, is just as important a milestone in Canadian history. Canadians should be made aware of it. It should be taught in the schools. It is a struggle by the Aboriginal peoples of Canada that we Canadians should always bear in mind because it is, in a sense, an achievement not only for Aboriginal people, but for all Canadians. I have described your work as a milestone in Canadian history; I just want to say I am proud to have played a small part in that history and I want to thank you very much for inviting me here today. ◉
This article was based on a speech to the Land Claims Agreement Coalition conference Keeping the promise: The path ahead to full modern treaty implementation held in Gatineau, Quebec, February 26- March 1, 2013.
Thomas R. Berger lives in Vancouver, British Columbia.