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Indigenous rights advocate to guide B.C. in Trans Mountain pipeline challenge

Lawyer Tom Berger is pictured in this Nov. 16, 2009, handout photo. Mr. Berger helped ensure aboriginal rights were included in the Constitution, led an inquiry into the Mackenzie Valley pipeline and served as a B.C. Supreme Court justice.

Handout/The Canadian Press/Handout/The Canadian Press

In naming Thomas Berger the B.C. government's outside counsel for legal challenges involving the Trans Mountain pipeline project, Attorney-General David Eby recalled studying Mr. Berger's work when he himself was a law student.

"His history extends all the way back to the Calder decision, which actually established the existence of First Nations title in the highest court in Canada, the Supreme Court of Canada," Mr. Eby told reporters on Thursday.

"We think he is absolutely the right person to guide us in this."

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Mr. Berger was described as "one of the pre-eminent legal figures in the history of this province" when he was awarded the Order of British Columbia more than a decade ago. He has also received the Order of Canada.

In the Calder case, which was heard at the Supreme Court of Canada in 1973 and was named for then-Nisga'a chief Frank Calder, the court ruled against a Nisga'a land claim 4-3, with the deciding vote cast on a technicality.

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However, the court also recognized for the first time that aboriginal title did exist and the ruling has been said to have to laid the groundwork for land claims that followed.

In addition to his work in the Calder case, Mr. Berger helped ensure aboriginal rights were included in the Constitution, led an inquiry into the Mackenzie Valley pipeline and served as a B.C. Supreme Court justice.

He also had a stint as BC NDP leader in the late 1960s.

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In the inquiry into the Mackenzie Valley pipeline, which was also held in the 1970s, Mr. Berger examined the effects a pipeline from Alaska into northern Canada would have.

He recommended a moratorium on construction in the Mackenzie Valley because of unsettled Indigenous land claims, a recommendation that was approved by the federal government.

Mr. Eby described Mr. Berger as "a living example of modern First Nations law in Canada" and said he has been recognized internationally for his work. "One of the reasons why I'm so thrilled Mr. Berger is working on this file for the government of British Columbia is his expertise in the very sensitive and important area of [the province's] relationship with First Nations governments," Mr. Eby said.

He said retaining Mr. Berger signals the government's commitment to Indigenous people – including upholding the United Nations Declaration on the Rights of Indigenous Peoples – and also protects the province's interests in the various legal challenges against the pipeline project.

The province said its desire is to seek intervenor status in the court cases and Mr. Berger will provide legal advice. It said it also plans to engage in meaningful consultation with Indigenous people on the pipeline project.

Mr. Berger did not return a message seeking comment.

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Grand Chief Stewart Phillip, of the Union of BC Indian Chiefs, in an interview said selecting Mr. Berger was an appropriate choice. "Needless to say, the entire Kinder Morgan issue is very complicated and complex as it pertains to our unextinguished aboriginal title and rights and our commitment to defend the integrity of the environment within our respective territories," he said.

"And certainly, Mr. Berger has a very long history in regard to the evolution of the law as it relates to the entire issue of aboriginal title."

Eugene Kung, a lawyer with West Coast Environmental Law, said in an interview Mr. Berger is well respected and has an esteemed background. "[He has] a long, long history of constitutional law and really digging deep on this question of what nation-to-nation relationships look like, and what respecting aboriginal rights means," Mr. Kung said.

Mr. Berger resigned from his role as a B.C. Supreme Court justice in 1983, after he was censured by the Canadian Judicial Council. Mr. Berger had publicly questioned why Indigenous rights would not be included in the Constitution. Such rights were included after Mr. Berger's remarks.

With reports from Ian Bailey, Mike Hager and Andrea Woo

Video: B.C. looks to join legal challenges to Kinder Morgan pipeline (The Canadian Press)
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