Justice Thomas Berger Also Worried About Climate Change

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Justice Thomas Berger (1933-2021) was a remarkable man who enjoyed a long and varied career, as a lawyer, judge, and public servant. But he will be remembered best as the author of Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry (1977), a two-volume report on northern development, pipelines, and Indigenous rights.

Over the course of his inquiry, Justice Berger did something that no one else had done: he actually listened to the Dene, Inuit, and Metis in the Mackenzie Valley, to men and women like Alice Frost, a woman from Old Crow, a fly-in Gwich’in community. Do white people, she asked, have a right to ask us to give up our land? The question implied its own answer.

Incredibly, Justice Berger did something else. When he raised the issue of oil spills, he also raised the issue of climate change, long before anyone was talking about climate change. The environmental consequences of a spill will not be limited to mammals, birds, and fish, he said, because the “accumulation of oil in the Arctic Ocean could affect climate.” Using the conditional voice, because no one knew for sure, he reported that oil spills “could diminish the albedo (the reflective capacity of ice), causing a decrease in the sea ice cover and hence changes in the climate.” After all, Arctic sea ice is a thermostat to the northern hemisphere.

When Justice Berger asked the experts, they were incredulous. According to one scientist, it was “unlikely” that oil released into the Beaufort Sea from a single well blowout, even one running for several years, “would have any effect whatever on global or even local climate.” But, he quickly added, this does not “discount the possible climate effects which might occur from a continuation of oil spills.”

The uncertainty bothered Justice Berger. “To what extent might the climate be affected by a series of major spills in Arctic waters? No one can say.” But given “the critical role of the polar ice pack in the world’s weather system,” he didn’t want to find out the hard way and he urged Canada to partner with other circumpolar nations to research “the risks and the consequences of oil and gas exploration.”

Thomas Berger was not a prophet, but he was an unusually thoughtful man who was capable of connecting the dots between climate science, then in its infancy, and Arctic oil spills.

Shortly after submitting his report, Justice Berger gave an address to Toronto’s Osgoode Hall Law School in which he questioned our faith in “an ever-expanding cycle of growth and consumption” and our over-reliance on oil and gas. “Our consumption is enormous,” he said. “And we in North America have become the most wasteful people on Earth.”

Again, Justice Berger wasn’t a prophet and I don’t want to turn him into some kind of proto-leave-it-in-the-ground climate activist. But forty-plus years later, we might honour his legacy by remembering his instinctive distrust of endless economic growth. “I am not urging that we dismantle the industrial system,” he told his Osgoode audience. “But I do say that we must pause, and consider, to what extent our national objectives are determined by the need for the care and feeding of the industrial machine.”

There’s a lot to unpack in that phrase, the care and feeding of the industrial machine.

Featured Image: Yellowknife formal hearing. Photo by D. Gamble in Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Hearing, Volume 1.
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Donald Wright is professor of political science at the University of New Brunswick and is the author of Canada: A Very Short Introduction.

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