Inquiring After Berger

Forty years on, asking the man who headed it about the Mackenzie Valley Pipeline Inquiry's legacy, his memories, and what's different now

Four decades ago, the NWT was in political upheaval. A new generation of aboriginal leaders was changing the territory’s political landscape, while at the same time a consortium of major oil companies was planning to run a massive pipeline from Alaska’s Prudhoe Bay, across the Yukon to the Mackenzie Delta and down the valley to Alberta.

In 1974, Justice Tom Berger, a B.C. Supreme Court judge at the time, stepped into this volatile mix to head what became the famous Mackenzie Valley Pipeline Inquiry. After travelling to more than 30 communities across the territory, Berger made the historic decision to suggest a 10-year moratorium on the Mackenzie Valley arm of the project – until land claims were settled and environmental protections were in place – and a complete halt to any pipeline building across the northern Yukon.

Berger will be in Yellowknife tomorrow to commemorate the 40th anniversary of the inquiry, which officially began March 3rd, 1975. He’ll be speaking at 7:00 p.m. in the auditorium of the Prince of Wales Northern Heritage Centre, which is currently hosting an exhibit on the inquiry, Thunder in Our Voices.

We reached Berger at his Vancouver office and asked him to share some memories of the inquiry and his thoughts on its legacy, 40 years on.

 

Can you remind us what your task was when you came North in 1975?  

 It was the experience of lifetime. I had never been to the Arctic or subarctic regions of Canada. I actually came up in 1974 on an informal basis. We had preliminary hearings at Yellowknife, Inuvik and Whitehorse. My object was to say to northerners, aboriginal and non-aboriginal: ‘Tell me, how do you think I should go about this task?’

I had already received a great deal of material from Arctic Gas, the consortium that proposed to build the pipeline, and it seemed I should hear what local people wanted to say about all of this.

We started the formal hearing March 3rd 1975, 40 years ago. I held formal hearings in Yellowknife, where 300 experts of one kind or another testified, but I also held community hearings where I heard from about 1,000 people, aboriginal and non-aboriginal, but predominantly aboriginal. I went by air, and visited every town and village in the Mackenzie Valley and the Western Arctic. At each place I said, ‘I will stay here as long as it takes for anyone to speak who wants to do so.’

Were you warmly welcomed in the communities?

Yes, people were glad to see me. The pipeline would bring a population of construction workers and pipeline tradesmen to the valley. Land claims had not been settled, so people were very concerned about hunting, fishing, and trapping, preserving the things they had depended upon for a very long time. They were also concerned about the social and economic impacts on their villages, and they were concerned that if the pipeline went ahead they wouldn’t actually get any jobs out of it. Everyone wanted to speak. And I wanted to learn.

I think this was the first time anyone had come into their villages and didn’t leave the same day with the engine still running on their seaplane. In some of those places I stayed for two or three days, in some places as long as five days.

Those community hearings were an innovation; I don’t think anything quite like that had been done before. I don’t take any credit for that because the people in the villages suggested I come hold hearings there so they could be heard.

Where did you hold the hearings?

I held them in community halls and I held some of them outdoors in the good weather. Nahanni Butte, I remember that was outdoors. Because I remained for a few days in each community, I suppose I became part of the landscape, eating with the local folks and listening to them informally, but I would always say to them: ‘Look, if that’s the way you feel, I think you should speak at the hearing, because then your testimony will be taken down and there will be a record of it.’

In some of the villages when we were there in summer, the hearing would go until midnight, then we would have a softball game. I remember in Fort McPherson I hit a home run. But I think the local chief had told the pitcher to give me a break.

berger2

Berger during the inquiry | Photo courtesy Prince of Wales Northern Heritage Centre

What are some other fond memories you had of travelling to the communities?

There were a lot of them. Let me cast my mind back. We were at Old Crow [in the Yukon] and there was a team of archaeologists from the University of Toronto, they had a dig a few miles outside Old Crow and they came in to listen to what was being said at the hearing. I recall the professor who led them had found a fleshing tool, which at the time was evidence of earliest occupation of the North Yukon.

I remember when we were holding hearings at Fort Good Hope, there were canoeists, people going down the river by canoe, and they stopped overnight at Good Hope and attended the hearings and they decided they wanted, as Canadians, to say something about it.

I remember having lunch with Prime Minister Trudeau, towards the end of the hearings. You see, he was an outdoorsman, he’d gone down the Mackenzie River as a young law professor, so he wanted hear about my travels, so I told him. And he said to me at one point, ‘You got a good job,’ and I said, ‘It’s the best job in the country, Prime Minister.’

The hearings started in 1975 and the final report didn’t come out until 1977. Did you spend that whole time in the North?

I came back to Vancouver about once a month. My children were teenagers in school at the time, but each of them came with me to the villages for a week, and my wife to Yellowknife several times to visit. We rented a place in Yellowknife for the summer of ’74, but after the hearing started I moved into the Explorer. I was holding hearings at the Explorer, in the ballroom. And they would go on for a week or two, then I might take a week off and go to the villages and the towns for a week or two.

You had the Old Town and I think the mine was still going, and of course the government of the NWT was located there, so it was a pretty busy place and growing at the time. I know a lot of people said that if Berger turns down the pipeline Yellowknife will become a backwater, I don’t think it’s turned out that way. I think it’s still growing

I stayed on an extra year and wrote a second volume about the conditions that should be observed if the pipeline were eventually to be built, but nobody remembers that. I think it was still used by the joint review committee that considered the Mackenzie gas project [in the 2000s], but of course they were dealing with it about 35 years on, so I’m sure my recommendations for dealing with an actual pipeline were brought up to date.

What do you think the legacy of the inquiry is?

Considering what I was asked to do, I made recommendations for establishment of a wilderness park in the Northern Yukon to protect the calving grounds of the Porcupine Caribou herd. I made other recommendations to protect the environment. I recommended that the pipeline not proceed until land claims had been settled in the valley.

As for the legacy, we may have discovered a way to conduct these commissions so that everybody who wanted to could participate. It meant a lot of travel for the commission. But since it was a one-man commission, it was easy for me to organize my travel and to see everybody and see everything. I visited hunting camps and fishing camps, I visited the drilling sites on the man-made offshore islands.

One of the things we did was promise everybody who spoke that I would send them a copy of my report, and I did. And another innovation was I decided the report had to be written in a way that any intelligent person could understand it, and that it should be illustrated with a lot of photographs and with excerpts and quotations from what people had told me. Northern Frontier, Northern Homeland is what we called it and I think it’s still the best selling document published by the Government of Canada. It was actually on bestseller list for a month or two at the time.

It’s for others to decide the legacy, but it all turned out very well and I’m gratified that people are still writing PhD theses about it, and that we are being remembered 40 years later.

A lot of the people who opposed the pipeline in the 1970s later came out in favour of one. Why do you think this change happened?

In my report, and everybody forgets about this, I said: ‘Look, when you have set aside these wilderness areas, guaranteed hunting, fishing and trapping rights and settled land claims, then you can build a pipeline from the Delta to Alberta along the Mackenzie Valley,’ and I set out the route and the environmental safeguards that had to be taken, the measures to provide for jobs for the local people. As time passed and all of these things were accomplished, it isn’t surprising that people who had once opposed it said ‘Alright, I think we’re ready, let’s do it.’

And of course it was approved; the Imperial Oil gas pipeline was approved by the cabinet, but it still hasn’t been built. The gas is still in the ground; it hasn’t gone anywhere.

If you were called up here today to assess the viability of a pipeline, do you think you would be in favour of it?

That’s a hypothetical question. Nobody’s about to ask me and I’m not about to do it. We’re now 40 years on and I’m 82 years old. I had everything I had to say back then, and I’ve more or less kept my mouth shut since then. I’m a historical artifact. Though I’m still functioning.