THE ADVOCATE V O L . 7 9 P A R T 4 J U L Y 2 0 2 1 489
T here are two lengthy (and deservedly so) tributes to Thomas
Berger, O.C., Q.C., in this issue of the Advocate. The first is by
Hamar Foster, Q.C., and begins on page 553 as the UVic Fac-
ulty of Law’s submission for this month’s issue. The second is
Chris Harvey, Q.C.’s account of Mr. Berger’s extraordinary life, which
appears in the Nos Disparus section of our magazine beginning at page 574.
These tributes arrived after we had decided to celebrate the appointment of
Ardith (Walpetko We’dalx) Walkem, British Columbia’s first female Indigenous
appointee to the British Columbia Supreme Court, on the front cover.
The connections between the momentous work of Mr. Berger in the area of
Aboriginal law and the appointment of Justice Walkem are striking. For
starters, the 56-year gap between Mr. Berger arguing about the existence of
Aboriginal rights in R. v. White and Bob and the appointment of the first
female Indigenous judge on the court is simply mind-boggling. What, on
earth, took so long!?
As Mr. Foster notes in his tribute, it was a novel concept in 1964 for a
lawyer to urge a court to overturn convictions of two Indigenous men for
illegal hunting by referencing a treaty that “almost no non-Indigenous persons,
and certainly no lawyers, had even heard of”. He goes on to explain
that, at the time, nothing about Aboriginal rights or title was being taught in
law schools, and such matters lay “well below the legal community’s event
horizon”. We are pleased that Mr. Berger’s enormous contributions to the
development (or even establishment) of Aboriginal law in Canada are
recounted in these pages by our colleagues.
As Mr. Harvey observes, “it tends to be forgotten that the Aboriginal
rights protected by s. 35 of the Constitution Act, 1982 are rights recognized
by the common law, not a separate body of law”.1 The role of counsel, as
exemplified by Mr. Berger, in “preserving and protecting the rights and freedoms
of all persons” (as our Law Society is charged with doing) is funda-