- The Empire Club of Canada Addresses (Toronto, Canada), 19 May 1977, p. 1-14
- Berger, Justice Thomas, Speaker
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- The Mackenzie Valley Pipeline Inquiry: unique in that there has been an impact study before, not after a large-scale frontier project. Details of the project. Social, environmental and economic impact. An address regarding the environmental impact. Problems of projecting an environmental impact. The fragility of many northern species. The importance of the history of the northern frontier to the history of North America. The concept of progress. The growth of ecological awareness. An outline of some of the environmental questions. The National Parks Act. Individual species affected. The feasability of a whale sanctuary in west Mackenzie Bay. A reconciliation of goals. Painful choices.
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- 19 May 1977
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- Full Text
- MAY 19, 1977
Northern Frontier--Northern Homeland
AN ADDRESS BY Mr. Justice Thomas Berger
CHAIRMAN The President, Peter Hermant
Ladies and gentlemen: Our honoured guest today, Mr. Justice Thomas Berger, has been described by Vancouver columnist Allan Fotheringham as the most visible investigator since Eliot Ness. His ratings in recent days have been the envy of any television producer.
As we are all aware by now, Judge Berger has been conducting, over the past three years, an inquiry into the feasibility and consequences of building pipelines from the shores of the Arctic Ocean, down through sections of the Yukon Territory and the Northwest Territories, to tie in with existing pipelines that service the southern Canadian and United States markets. Since the Berger Report was tabled in Parliament on Monday, May 9th, we have all read and heard a great deal about the results and the reactions to the enquiry, but I am sure that Judge Berger will want to mention one or two things about that today. One thing that is overridingly evident, however, is that this commission, more than many others, has taken on a personality of its own, partly because of the nature of the material being discussed but also partly because of its author.
Judge Berger was born in Victoria, British Columbia, and is the son of an RCMP officer there. He spent part of his boyhood on the prairies in Regina and Prince Albert and then returned to British Columbia to study law at the University of British Columbia-and here I cannot pass without saying a silent "Hail U.B.C." to my own alma mater. He was called to the bar in B.C. in 1957 and entered the practice of law. Within five years some of his cases had set legal precedents and he found himself already in the public eye. He defended Indian bands in British Columbia over reserve rights to timber, hunting and fishing and represented the Métis and Indian trappers of the Athabaska Delta in a dispute with British Columbia Hydro over muskrat hunting grounds.
Following what many consider to be a normal process, he entered politics and was elected as a New Democratic Member of Parliament-spending a year in Ottawa. He soon returned to British Columbia where he won a seat in the Legislature in 1966 and for a brief time was leader of the British Columbia NDP, preceding David Barrett.
In 1971, at the tender age of 38, he was appointed to the Supreme Court of British Columbia, an appointment which apparently surprised him as much as it did many others. He was named to conduct the Inquiry which bears his name in March 1974. He has obviously become intensely and personally interested in his task. He has used freighter canoes, float planes and helicopters to conduct hearings in twenty-eight Arctic settlements. He has listened to hours of testimony in English, French, Slavy, Dogrib, Chipewyan, Hair, Loucheux, and Inuktitut. He has, in his own words, "had a beer in just about every town we visited". He has talked with natives in their homes until 5:00 a.m. and he and his wife, Beverley, have spent months travelling in the north chatting, sipping tea and eating with the people there. He has visited on his own, privately, Fort Good Hope, Fort Norman, Fort Franklin, Fort Providence, Hay River, Fort Smith, Old Crow, Fort McPherson, and the Arctic Red Rivernames most of us have never heard, let alone visited, but names that make up the fabric of the north.
Judge Berger's grandfather was a magistrate in G6teborg, Sweden; his daughter, Erin, I am told, is a formidable opponent at tennis and he has been known to spend what free time he has introducing his son, David, to the wonders of the Marx Brothers at an art film house in Vancouver. He has said of his own enquiry that, "It's the biggest job of my life. The word challenge is terribly overworked but if you have an assignment that stretches your capabilities to their fullest-well, that's something that may not occur much in one's life."
Ladies and gentlemen, the subject of Canada's north is one that has mesmerized and fascinated hundreds of people but few have approached the subject with more personality than Mr. Justice Thomas Berger. In a lecture at Queen's University in November of 1975, Judge Berger summarized his remarks with words that bear repeating here.
"We Canadians think of ourselves as a northern people. Maybe we have at last begun to realize that we have something to learn from the races of people who have managed to live for centuries in the north, people who never did seek to change the environment but rather to live in harmony with it. Maybe we have begun to realize we have something to learn from those who have gone north from southern Canada to make the north their home. And maybe it is time the metropolis listened to the voices on the frontier; time the metropolis realized it has something to learn from Old Crow and Hay River. Because what happens in the north will be of great importance to the future of our country. It will tell us what kind of a people we are. F. R. Scott once described the north as an arena large as Europe, silent, waiting the contest. The contest has begun. And it is our responsibility to see that the north and its peoples are not the losers in that contest."
Ladies and gentlemen, it is an honour to ask Mr. Justice Thomas Berger to address us on the topic "Northern Frontier-Northern Homeland".
MR. JUSTICE BERGER:
Ladies and gentlemen: The Mackenzie Valley Pipeline Inquiry may well be unique in Canadian experience, because for the first time we have sought to determine the impact of a large-scale frontier project before and not after the fact.
Two pipeline companies, Arctic Gas and Foothills Pipe Lines, are competing for the right to build a gas pipeline to bring natural gas from the Arctic Ocean to the midcontinent. The government of Canada established the inquiry to see what the social, economic and environmental consequences would be if the pipeline were built, and to recommend what terms and conditions should be imposed.
Let me repeat those words: social, environmental and economic impact. I dare say they confer as wide a mandate upon the inquiry as any government has ever conferred upon any inquiry in the past.
We have been told that the Arctic Gas pipeline project is the greatest project, in terms of capital expenditure, ever undertaken by private enterprise anywhere. We have been told that if a gas pipeline is built it will result in enhanced oil and gas exploration activity all along the route of the pipeline, throughout the Mackenzie Valley, the Mackenzie Delta and the Beaufort Sea.
But the gas pipeline, though it is a vast project, is not to be considered in isolation. The government of Canada, in the Expanded Guidelines for Northern Pipelines (tabled in the House of Commons on June 28th, 1972) made it clear that the enquiry was to consider what the impact would be if the gas pipeline were built and were followed by an oil pipeline.
So I had to consider the impact on the north of an energy corridor that would bring gas and oil from the Arctic to the mid-continent. In fact, under the Pipeline Guidelines, I had to consider the impact of the project on two corridors, one corridor running from Alaska across the northern Yukon to the Mackenzie Delta, and a second corridor from the Mackenzie Delta along the Mackenzie Valley.
This may well be the most ambitious attempt we have ever made to evaluate change before that change occurs, t determine whether it ought to occur and, if it is to occur, how its adverse consequences may be mitigated.
My report has been handed on to the government. It deals with many subjects. I propose today to deal with environmental impact.--It isn't easy to predict environmental impact. Environmental impact may not be sudden and dramatic; it is more likely to be slow and cumulative. We've heard the evidence of a host of distinguished experts in the field. As you might expect, they don't always agree.
The northern environment has been described as fragile. It may or may not be. Certainly northern species have to be hardy to survive. But the fact is that many northern species are vulnerable at certain times of the year. The question is, what will be the environmental impact of the pipeline?
A gas pipeline will entail much more than a right of way. It will be a major construction project across our northern territories, across a land that is cold and dark in winter, a land largely inaccessible by rail or road, where it will be necessary to construct wharves, warehouses, storage sites, airstrips-a huge infrastructure-just to build the pipeline. There will have to be a network of hundreds of miles of roads built over the snow and ice. Take the Arctic Gas project: the capacity of the fleet of tugs and barges on the Mackenzie River will have to be doubled. There will be six thousand construction workers required north of 60 to build the pipeline, and twelve hundred more to build the gas plants and gathering systems in the Mackenzie Delta. There will be 130 gravel mining operations. There will be six hundred river and stream crossings. There will be pipe, trucks, heavy equipment, tractors and aircraft.
The history of North America is the history of the frontier: of pushing back the wilderness, cultivating the soil, populating the land, and then building an industrial way of life. The conquest of the frontier in North America is a remarkable episode in human history, and it altered the face of the continent. The achievement was prodigious, and there is no need here to tell how transportation networks were evolved, cities founded, industries established, commerce expanded, and unparalleled agricultural productivity developed. The super-abundance of land and resources gave rise to a conviction that the continent's resources were inexhaustible.
Thus a particular idea of progress is firmly embedded in our economic system and in the national consciousness; but there is also in Canada a strong identification with the values of the wilderness and of the land itself. No account of environmental attitudes would be complete that did not recognize this deeply felt, and perhaps deeply Canadian, concern with the environment for its own sake. The judgement of this inquiry must, therefore, recognize at least two sets of powerful, historically entrenched-but conflicting attitudes and values.
In recent years, we have seen the growth of ecological awareness, and a growing concern for wilderness, wildlife resources and environmental legislation that parallels although it does not match-the increasing power of our technology, the consumption of natural resources, and the impacts of rapid change. There are situations in which the two sets of attitudes and values simply cannot be reconciled. The question then turns on the depth of our commitment to environmental values when they stand in the way of technological and industrial advance.
This opposition of views is particularly clear in the north. The northern native people, along with many other witnesses at the inquiry, insisted that the land they have long depended upon will be injured by the construction of a pipeline and the establishment of an energy corridor. Environmentalists pointed out that the north, the last great wilderness area of Canada, is slow to recover from environmental degradation; its protection is, therefore, of vital importance to all Canadians. It is not easy to measure that concern against the more precisely calculated interests of industry. But we must try and face the questions that are posed in the north of today: Should we open up the north as we opened up the west? Should the values that conditioned our attitudes toward the environment in the past prevail in the north today and tomorrow?
Let me be clear about the importance that I accord to wilderness. No one seeks to turn back the clock, to return in some way to nature, or even to deplore, in a high-minded and sentimental manner, the real achievements of the industrial system. Rather, I suggest that wilderness constitutes an important-perhaps an invaluable-part of modern-day life; its preservation is a contribution to, not a repudiation of, the civilization upon which we depend.
Wallace Stegner wrote in 1960: Without any remaining wilderness we are committed . . . to a headlong drive into our technological termite-life, the Brave New World of a completely man-controlled environment .... We simply need that wild country . . . (as) part of the geography of hope. (Cited in W. Schwartz, Voices for the Wilderness, p. 284.)
Make no mistake, the environmental issues at stake cannot be sloughed off. Remember, the north really is our last frontier: after we have passed this frontier, there is no other frontier beyond.
The north is immense. But within this vast area are tracts of land and water that are vital to the survival of whole populations of certain species of mammals, birds and fish at certain times of the year. This concern with critical habitat lies at the heart of my consideration of environmental issues.
Let me outline some of the environmental questions that I have tried to come to grips with in the report, and that the government of Canada, and all Canadians, must now consider.
Our national parks legislation, as it now stands, is not adequate to preserve northern wilderness areas, which, if they are to be preserved, must be withdrawn from any form of industrial development. That principle must not be compromised. It is essential to the concept of wilderness itself as an area untrammeled by industrial man.
We should include in our National Parks Act a provision for a new statutory creation: the wilderness park. It would consist of land to be preserved in its natural state for future generations. Wilderness legislation has already been in existence in the United States since 1964.
I have urged that the northern Yukon be designated a national wilderness park. Let me tell you why: the northern Yukon is an arctic and subarctic wilderness of incredible beauty, a rich and varied ecosystem: nine million acres of land in its natural state, inhabited by thriving populations of plants and animals. This wilderness has come down through the ages, and it is a heritage that future generations, living in an industrial world even more complex than ours, will surely cherish.
If you build a pipeline from Alaska along the Arctic coast of the Yukon you will be opening up a wilderness where the Porcupine River caribou herd calves every summer. This is one of the last great herds of caribou, 110,000 animals, in North America.
In late August, as many as 500,000 snow geese gather on the Arctic Coastal Plain to feed on the tundra grasses, sedges and berries, before embarking on the flight to their wintering grounds. They must build up an energy surplus to sustain them, indeed, so must all other arctic waterfowl and shorebirds store up energy for their long southward migration to California, the Gulf Coast, or Central and South America.
The peregrine falcon, golden eagle and other birds of prey nest in the northern Yukon. These species are dwindling in numbers because of the loss of their former ranges on the North American continent and because of toxic materials in their food. Here in these remote mountains they . still nest and rear their young, undisturbed by man.
One-fifth of the world's whistling swans nest along the Arctic coast of the Yukon and in the Mackenzie Delta region. The Old Crow Flats, and the Arctic Coastal Plain provide critical habitat for other waterfowl, including canvasback, scaup, scoter, wigeon, old squaw and mallard. These northern wetlands are particularly important during years of drought on the prairies. Then the waterfowl flock north in much larger numbers than usual, and are thus able to survive to breed again in the south in more favourable years.
You will find polar bear on the ice along the coast, the barren-ground grizzly on the open tundra, and the black bear around Old Crow Flats. You will find moose and Dall sheep, wolf, fox, beaver, wolverine, lynx and, of course, muskrat.
Thus the proposal by Arctic Gas to build a pipeline across the northern Yukon confronts us with a fundamental choice. It is a choice that depends not simply upon the impact of a pipeline across the northern Yukon, but upon the impact of the establishment of a corridor across it.
This eco-system, with its magnificent wilderness and scenic beauty, has always been protected by its inaccessibility. With pipeline construction, the development of supply and service roads, the intensification of the search for oil and gas, the establishment of an energy corridor, and the increasing occupation of the northern Yukon, it will no longer be inaccessible to man and his machines.
I also recommended that a whale sanctuary be established in Mackenzie Bay. In summer the white whales of the Beaufort Sea converge on the Mackenzie Delta to calve. The herd-some five thousand animals-remains in the vicinity of the Delta throughout the summer, then leaves for the open sea. For these animals, the warm waters around the Mackenzie Delta, especially Mackenzie Bay, are critical habitat, for here they have their young. Nowhere else, so far as we know, can they go for this essential part of their life cycle. We must preserve these waters from any disturbance that would drive the whales from them.
If the pipeline is built, there will be increased oil and gas exploration and development in the Beaufort Sea. This development, both near the shore and offshore, will have a large impact on the whale population, greater in the long run than that of the pipeline itself.
Dr. David Sergeant, summarizing his evidence to the inquiry, stated: . . . the population of white whales which calves in the Mackenzie is virtually the whole of the population of the Beaufort Sea. I postulate that simultaneous oil and gas activities throughout the whole Delta in July each year could so disturb the whale herd that they would be unable to reproduce successfully. In time, the herd would die out. If we wish to maintain the herd, we must initiate measures now which we can be certain will allow its successful reproduction annually.
Is a whale sanctuary in west Mackenzie Bay a practical proposition? What will its effect be on future oil and gas exploration? Will it impose an unacceptable check on oil and gas exploration and development in the Mackenzie Delta and the Beaufort Sea? We are fortunate in that the areas of intense petroleum exploration, to date, lie east of the proposed whale sanctuary, both offshore and onshore. If this trend continues, then a whale sanctuary can be set aside, and oil and gas activity can be forbidden there without impairing industry's ability to tap the principal sources of petroleum beneath the Beaufort Sea.
Thus the trend of exploration appears to offer us an opportunity to set aside certain offshore waters as a whale sanctuary, but this trend is by no means a certainty. In the final analysis, the government of Canada will have to decide whether or not to protect this herd of whales. If we decide to protect them, we must establish a sanctuary that will be inviolate regardless of the prospects for oil and gas discoveries. Once a discovery were made within the sanctuary, it would be difficult to resist the urge to look for other reserves near it. We must decide whether we are going to protect these animals or not. If we are going to protect them, we must establish a whale sanctuary now.
We look upon the north as our last frontier. It is natural for us to think of developing the north, of subduing the land, populating it with people from southern Canada, and extracting its resources to fuel Canada's industry and heat our homes. Our whole inclination is to think in terms of expanding our industrial machines to the limit of our country's frontiers.
We have never had to consider the uses of restraint, to determine what is the most intelligent use to make of our resources. The question is, are we serious people, willing and able to make up our own minds, or are we simply driven by technology and egregious patterns of consumption, to deplete our energy resources wherever and whenever we find them?
I do not want to be misunderstood about this.
I am not proposing that we shut up the north, as a kind of living folk museum and zoological gardens.
I have proceeded on the assumption that, in due course, the industrial system will require the gas and oil of the western Arctic, and that they will have to be transported along the Mackenzie Valley to markets in the south. I have also proceeded on the assumption that we intend to protect and preserve Canada's northern environment, and that, above all else, we intend to honour the legitimate claims and aspirations of the native people. All of these assumptions are embedded in the federal government's expressed northern policy for the 1970s.
I have sought to reconcile these goals: I proposed a wilderness park in the northern Yukon and urged that no pipeline cross it, but at the same time I indicated that the Alaska Highway route, as a corridor for the transportation of Alaskan gas to the Lower 48, was preferable from an environmental point of view.
I proposed a whale sanctuary, but I limited its boundaries to waters where no discoveries of gas or oil have yet been made.
I have recommended the establishment of bird sanctuaries in the Mackenzie Delta and the Mackenzie Valley. Oil and gas exploration and development would not be forbidden within these sanctuaries, but it would be subject to the jurisdiction of the Canadian Wildlife Service.
I have advised the government that a pipeline corridor is feasible, from an environmental point of view, to transport gas and oil from the Mackenzie Delta along the Mackenzie Valley to the Alberta border. At the same time, however, I have recommended that we should postpone the construction of the pipeline for ten years, in order to strengthen native society, the native economy-indeed, the whole renewable resource sector-and to enable native claims to be settled.
I am not urging that we dismantle the industrial system. It has been the means to the well-being of millions, and an engine of prosperity for our country. 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. Do we control it, or does it control us?
We believe in an ever-expanding cycle of growth and consumption. I think the time is coming when we must reconsider this view. It is not only we in the industrial democracies who are being urged to do so.
The issues are in fact profound ones, going beyond the ideological conflicts that have occupied the world for so long, conflicts over who was going to run the industrial machine, and who was going to get the benefits. Now we are being asked, how much energy does it take to run the industrial machine, where does the energy come from, where is the machine going, and what happens to the people who live in the path of the machine? The government has said to the inquiry: tell us what measures will protect those people, their environment and their economy.
The time is soon arriving when we must make up our minds. We will have to make some hard and painful choices. I urge that we all bear in mind that the views of those who support the pipelines are views held in good faith, and that the views of those who oppose it are held in good faith, that there is such a thing as an honest difference of opinion.
Of course all that I can do is to report on the impact the pipeline and the energy corridor will have on the north, and to recommend the terms and conditions under which the pipeline should be built, if it is to be built.
It will be for the National Energy Board to consider the question whether Canada's demand for gas requires the building of a pipeline to bring frontier gas to market.
It will be for the government of Canada, when they have my report before them, and the National Energy Board report, to weigh Canada's need for frontier gas, and the impact of construction of a pipeline and the establishment of an energy corridor on the north and on northern peoples, and then to decide whether a pipeline should be built, where it should be built, when it should be built, and who should build it. These are political decisions, to be taken by those who have been elected to make such decisions.
The appreciation of the audience was expressed by Mr. William M. Karn, Immediate Past President of The Empire Club of Canada.