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to me. And that makes us uneasy.” Uneasy or not, he listened, he heard what
was being said to him and he recommended that no pipeline be built until
land claims were settled. Compare that to what had happened less than a
decade earlier in British Columbia, when the W.A.C. Bennett Dam was built.
This ability to listen served Tom well as a lawyer and judge as well as a
commissioner, but it stands out in his commission work, which ranged from
federal inquiries, such as the Mackenzie Valley Pipeline Inquiry, to provincial
ones involving such matters as family law and the abuse of children at
the School for the Deaf in Vancouver. There were also international
inquiries. At the request of the Inuit Circumpolar Association, he spent two
years inquiring into the Alaska Native Claims Settlement Act and its impact.
In addition, he was appointed deputy commissioner of the first independent
inquiry appointed by the World Bank, whose mandate was to assess the
impact of the construction of a high dam on India’s Narmada River. Listening
intently and hearing people was also key to Tom’s surpassing skill as an
advocate, his judicial work and his public statements on issues of importance.
As anyone who faced him in court can attest, Tom could drill down
to the heart of the matter, make it all seem so obvious and simple, and
demolish the opposing argument so courteously and effectively that you
almost wondered why the other side was there at all. Ian Gill, in a tribute
in The Tyee, described him as “avuncular”. Tom, he wrote, “had a polished,
barrister’s baritone, an easy but authoritative way of speaking, ear cocked
out of genuine curiosity, a smile never far away. For a big man with a sharp
mind, there was a languidness about him that seemed to verge at times on
diffidence. In fact, he was a master of soft power.”
The title of Gill’s tribute, “Tom Berger’s Cases Revealed His Moral Character”,
captures the second quality that has so impressed me. As Murray
Sinclair put it in a CBC radio interview shortly after Tom died, he had a
steadfast and lifelong commitment to doing the right thing, as he saw it. At
the end of a talk entitled “My Idea of Canada”, Tom told his audience that
he would leave them with something F.R. Scott had written: “If human
rights and harmonious relations between cultures are forms of the beautiful,
then the state is a work of art that is never finished.” This is a theme
that runs throughout Tom’s remarkable career, not only at hearings and in
the courtroom, but also in his books, especially Fragile Freedoms: Human
Rights and Dissent in Canada (1981), A Long and Terrible Shadow: White Values,
Native Rights in the Americas (1999) and One Man’s Justice: A Life in the
Law (2002). They chronicle everything from the well known, such as the
Calder case, to the relatively obscure (except of course to the clients whose
causes he championed). All three books reflect Tom’s dedication to human